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International
Criminal La
w
Review
Punishment in Negotiated Transitions: The
Case of the Colombian Peace Agreement with
the -
Lily Rueda Guzman
Doctoral candidate, Department of Criminal Law and Criminology, Faculty
of Law, University Amsterdam, Amsterdam, The Netherlands; Judge, Am-
nesty Chamber, Special Jurisdiction for Peace, Colombia
l.a.ruedaguzman@vu.nl
Barbora Holá
Senior Researcher, Netherlands Institute for the Study of Crime and Law
Enforcement (); Associate Professor, Department of Criminal Law
and Criminology, Faculty of Law, University Amsterdam, Amsterdam,
The Netherlands
bhola@nscr.nl
Abstract
The peace agreement recently concluded between the Government of Colombia
and the - not only marked a milestone in the history of Colombia and peace
making; it also introduced an unprecedented penal measure: negotiated criminal
punishment. This example demonstrates that criminal punishment can be moulded
to accommodate the needs of a society undergoing a political transition triggered by
a peace negotiation. In the 1990s Garland already pointed out that penal measures
are shaped by their social and historical context, and also afect their social environ-
ment. Based mainly on a sociological perspective on punishment, this article analyses
the relationship between the punishment negotiated in the recent peace talks with
the - and the Colombian government’s trying to come to terms with atroci-
ties committed during the armed conict. Based on the Colombian experience, this
article also outlines contextual factors, which shape how punishment is negotiated in
the context of peace agreements
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Keywords
Colombia – Fuerzas Armadas Revolucionarias de Colombia (-) – political
transition – punishment in transition – peace negotiation – sociology of punishment
1 Introduction
In November 2016 the Colombian government and the Fuerzas Armadas Revo-
lucionarias de Colombia (-), the main guerrilla group in the country,
reached a historical peace agreement to end more than fty years of war. The
protracted internal armed conict caused massive victimisation. Grave human
rights violations and international crimes have been allegedly committed by
all sides to the conict. Up to October 2018, there have been 8,760,290 regis-
tered victims. The peace agreement, on the one hand, provides for the ‘broad-
est amnesty possible’. On the other hand, those considered most responsible
for the most serious crimes who cannot be legally amnestied, will benet from
restorative sanctions that do not entail incarceration, but consist of repara-
tions and community service in war-torn regions of the country. This penal
policy was designed as part of a broader ‘Comprehensive system to satisfy vic-
tims’ rights to truth, justice, reparation and non-repetition’, which includes not
only a Special Jurisdiction for Peace () in charge of prosecuting, judging
and sanctioning the crimes, but also other non-judicial mechanisms, such as a
truth commission and a unit for the search of disappeared persons.
It is undeniable that the peace agreement made possible a major social
transformation: the - no longer exists as an illegal armed group, but as
a political party. Hostilities and conict-related violence have been reduced.
This research was funded by The Netherlands Organization for Scientic Research ()
Grant Number 406-15-255. Juan Manuel Santos and Timoleón Jimenez, Agreement for End-
ing the Conlict and Building a Stable and Lasting, <www.altocomisionadoparalapaz.gov.co/
procesos-y-conversaciones/Documentos%20compartidos/24-11-2016NuevoAcuerdoFinal
.pdf>, accessed 31 October 2018.
Oce of the Prosecutor of the International Criminal Court, Report on Preliminary Exami-
nations Activities 2016, <www.icc-cpi.int/iccdocs/otp/161114-otp-rep-pe_eng.pdf>, accessed 31
October 2018.
Unidad para las Víctimas, Reporte Registro Único de Víctimas, <www.unidadvictimas.gov.co/
es/registro-unico-de-victimas-ruv/37394>, accessed 31 October 2018.
Fundación Paz y Reconciliación, Una Increíble Cifra de Reducción de La Violencia, <www.pares.
com.co/wp-content/uploads/2017/04/Una-incre%C3%ADble-cifra-de-reducci%C3%B3n-
de-la-violencia.pdf>, accessed 1 November 2017.
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On 13 October 2017, the Special Verication Mission of the United Nations
handed over armaments and ammunition to the Colombian government that
were yielded up by approximately 7,000 former - members as the re-
sult of their demobilisation.
The peace agreement, and particularly how perpetrators are to be punished,
has also triggered very critical reactions. One of the main controversies revolves
around the lack of long imprisonment terms and the use of restorative sanctions
for the most serious crimes. Leaders of the opposition have ercely rejected the
accord since those considered the most responsible will not be sentenced to
prison terms. According to them, this violates national and international stan-
dards of justice. Others, such as former President Juan Manuel Santos, stated
that the peace deal represents peace without impunity since those most re-
sponsible will be punished, even if using restorative sanctions. From a more
pragmatic perspective, it is considered as the only alternative to war.
Penal measures are shaped by their social and historical context and, at the
same time, they inuence their social environment. Criminal punishment
as a response to wrongdoing is always a context-dependent exercise. Thus,
Misión de Vericación de las Naciones Unidas en Colombia, Entrega formal al gobierno
nacional del material resultado de la inhabilitación y destrucción de todo el armamento
y munición de las - que se encontraba resguardado en el depósito general de ar-
mamento de la Misión, <https://colombia.unmissions.org/entrega-formal-al-gobierno-
nacional-del-material-resultado-de-la-inhabilitaci%C3%B3n-y-destrucci%C3%B3n-de>,
accessed 31 October 2018.
Álvaro Uribe, Oppenheimer: Entrevista a Álvaro Uribe, <http://edition.cnn.com/videos/
spanish/2013/11/18/cnnee-oppenheimer-alvaro-utibe-intv.cnn>, accessed 31 October 2018;
Procuraduría General de la Nación, La paz no lo justica todo, mínimos penales para máx-
imos responsables, <www.procuraduria.gov.co/portal/media/le/200815DOCUMENTO
.pdf>, accessed 31 October 2018.
Juan Manuel Santos, Discurso de Juan Manual Santos en la rma de los acuerdos de paz,
<www.youtube.com/watch?v=dhtDNHKwxTQ>, accessed 31 October 2018.
Hernando Gómez, Perdonar todos los crímenes y a todos los criminales, <www.razonpubli-
ca.com/index.php/conicto-drogas-y-paz-temas-30/9299-perdonar-todos-los-crimenes-
y-a-todos-los-criminales.html>, accessed 31 October 2018.
David Garland, Punishment and Modern Society. A Study in Social Theory (Oxford Univer-
sity Press, Oxford, 1990).
Following Garland, this article understands criminal punishment as ‘the legal process
whereby violators of the criminal law are condemned and sanctioned in accordance with
specied legal categories and procedures’; the category includes processes of law-making,
conviction, sentencing and the administration of penalties. Ibid., p. 17.
Colleen Murphy, ‘Transitional Justice, Retributive Justice and Accountability for Wrong-
doing’, in Claudio Corradeti, Nir Eisikovits and Jack Rotondi (eds.), Theorizing Transitional
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it can only be properly understood and evaluated by considering a wider his-
torical, societal and political context, in which it is enacted and implemented.
In complex contexts of political transitions, when societies attempt to move
from war to peace, penal policies heavily depend on political and societal fac-
tors triggering and driving the political transformation. In the case of peace
negotiations to end an armed conict, criminal punishment for past atrocity
crimes (or the lack thereof) is often at the core of political discussion; it is not
only shaped by the transitional context but it also conditions the transition
and is thus central to its outcome. It is punishment in transition. It is complex
and intricate.
The relationship of punishment and peace negotiations is commonly
framed by the well-known dilemma of ‘justice versus peace’. When negotiating
peace, the problem of criminal punishment is often approached as a binary
choice between prosecutions, trial and incarceration or broad amnesty for per-
petrators. According to legalists, traditional prosecutions and sanctions for
past grave human rights violations and international crimes are not only desir-
able but also necessary elements of justice. The demands for full judicial ad-
judication of criminal responsibility entailing proportionate punishment and
subsequent incarceration, are, however, often confronted by moral challenges
and pragmatic limitations. In fact, those alleged perpetrators, often sitting at
the negotiating table, may agree to peace conditionally on receiving amnesties
or pardons. Moreover, only a handful of perpetrators can be actually pros-
ecuted and sanctioned given the scarcity of resources at hand, which must be
administered to cover other societal and individual needs in a post-conict
setting. Therefore, securing criminal accountability and punishment as part of
peace negotiations has proven to be almost impossible in practice.
Justice (Ashgate, Farnham, 2015) p. 59; Antony Duf, Punishment, Communication and
Community (Oxford University Press, Oxford, 2001).
Priscilla Hayner, Centre for Humanitarian Dialogue and International Center for Tran-
sitional Justice, Negotiating Justice. Guidance for Mediators, <http://peacemaker.un.org/
sites/peacemaker.un.org/les/NegotiatingJustice_Hayner2009.pdf>, accessed 31 October
2018.
Colleen Murphy, The Conceptual Foundations of Transitional Justice (Cambridge Univer-
sity Press, Cambridge, 2017) p.7; Lisa Laplante, ‘Outlawing Amnesty: The Return of Crimi-
nal Justice in Transitional Justice Scheme’, 49 Virginia Journal of International Law (2009)
915–984.
International Council of Human Rights Policy, Negotiating Justice? Human Rights and
Peace Agreements, <www.ichrp.org/les/reports/22/128_report_en.pdf>, accessed 4
November 2017.
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Given these unique and often contradictory legal, moral, political and prag-
matic considerations, punishment in transition does not readily resemble
punishment ‘as we know it’ in times of stable democracies. Punishment in
transition is not only operating in a context of transition, but is also in transi-
tion itself, changing and being moulded according to new and challenging so-
cial and political needs. While being a complex phenomenon, penal policies in
times of political transition are generally understudied, in particular when it
comes to transitions from war to peace, which are negotiated by former warring
parties. This article seeks to ll this gap. It analyses the most recent case of nego-
tiated punishment in transition stipulated in the peace agreement reached in
November 2016 by the Government of Colombia and the -. For the rst
time in peace-making history, the parties agreed on provisions for the adjudi-
cation of criminal responsibility and the enforcement of criminal sanctions.
This article rst explains what it understands by a ‘context of political tran-
sition’ to place the Colombian experience of negotiated punishment in tran-
sition in a broader analytical framework of transitional justice. The context
of political transition encompasses a setting in which past political, collec-
tive and widespread criminality, which commonly amounts to international
crimes and grave human rights violations, is being addressed while new politi-
cal power structures are being created or consolidated. In this context, broad
societal goals such as justice, democracy, rule of law or reconciliation are pur-
sued while at the same time they are being debated and contested. Section
two argues that in order to understand punishment negotiated in such volatile
and complex contexts, a sociological analysis of punishment is necessary to re-
ect its unique social, cultural and political circumstances. In the third section,
this article zooms in on the Colombian peace agreement with the -.
It describes characteristics of the Colombian political transition triggered by
the peace accord, including dynamics of the conict and the violence, and the
objectives pursued by the accord. It describes the punishment agreed by the
parties, highlighting the special sanctioning regime. This section argues that
from a sociological perspective such punishment can be seen as a compromise
Murphy, supra note 11.
Leonidas Cheliotis and Sappho Xenakis, ‘Punishment and Political Systems: State Puni-
tiveness in Post-Dictatorial Greece’, 18 Punishment and Society (2016) 268–300.
Leslie Vinjamuri and Aaron Boesenecker, Centre for Humanitarian Dialogue, Account-
ability and Peace Agreements. Mapping Trends from 1980 to 2006, <www.les.ethz.ch/
isn/39727/0907_Accountabilityreport.pdf>, accessed 31 October 2018; Vicenç Fisas, School
for a Culture of Peace, Yearbook on Peace Processes 2016, <http://escolapau.uab.cat/index.
php?option=com_content&view=article&id=916%3Aanuario-de-procesos-de-paz-2016
&catid=67%3Aanuarios&Itemid=119&lang=en>, accessed 31 October 2018.
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reached within a wider bargaining process, which is dicult to evaluate using
traditional theories of criminal punishment, such as retribution, deterrence
or incapacitation. Finally, drawing on the Colombian experience, this article
on a general level explores particularities of punishment in transition, when
designed in contexts of peace negotiations. It proposes a list of contextual fac-
tors to analyse the design, type and severity of punishment negotiated during
processes, when political transition is being triggered and conditioned by a
peace agreement.
2 Contexts of Political Transitions – Transitioning from War to Peace
In order to understand the design, implementation and challenges of punish-
ment in transitions triggered by peace negotiations and to situate it in a broad-
er analytical framework, it is rst essential to outline the constitutive elements
of a political transition. To do so, this article mainly draws upon literature from
the eld of transitional justice, which is a multi- and inter-disciplinary eld
of research studying the ways in which societies deal with past mass atroc-
ity crimes, i.e. grave human rights violations and international crimes, in their
eforts to democratise after armed conict or repression. The problem of do-
ing justice, and particularly of doing criminal justice after atrocities, including
prosecutions and punishment, has been central to the work of many transi-
tional justice scholars.
The post-conict or post-repression contexts in which atrocity crimes are
addressed are known to be constrained, polarised, fragile and resistant to
change. While the wording ‘transitional context’ is commonplace in this
body of scholarship, the constitutive elements of such context are rarely ex-
plored. In order to understand the design, justication and application of
Naomi Roth-Arriaza, ‘After Amnesties Are Gone: Latin American National Courts and the
New Contours of the Fight Against Impunity’, 37 Human Rights Quarterly (2015) 341–382.
International Center for Transitional Justice, What is Transitional Justice?, <www.ictj
.org/sites/default/les/ICTJ-Global-Transitional-Justice-2009-English.pdf.>, accessed 1
November 2018.
Makau Mutua, ‘What Is the Future of Transitional Justice?’, 9 International Journal of
Transitional Justice (2015) 1–9; Yeliz Budak, ‘Dealing with the Past: Transitional Justice,
Ongoing Conict and the Kurdish Issue in Turkey’, 9 International Journal of Transitional
Justice (2015) 219–238.
Christine Bell, ‘Transitional Justice, Interdisciplinarity and the State of the “Field” or
“Non-Field”’, 3 International Journal of Transitional Justice (2009) 5–27; Murphy, supra
note 13.
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punishment in negotiated transitions, however, the following three general fea-
tures of such contexts are of essence. First, the character of the crimes, which
are being punished. Second, the political environment in which punishment is
designed and implemented, and, third, the future societal goals pursued by the
concerned society and to which punishment policies are also oriented. These
elements are briey explained below.
Crimes addressed within a context of transition are widespread, collective
and politically motivated. They are political in nature and generally ‘carried
out by the state (or with the permission of the state) or by actors ghting the de
facto authorities to further political objectives.’ This is opposed to ordinary
criminality, in which usually personal ends are pursued, even when ofenses
are committed through organisations. The violence is of a collective nature
because it is committed by a multiplicity of perpetrators against a multiplicity
of victims; it is committed ‘by groups against groups’. There is a wide range
of wrongdoers, including not only killers, rapists and other hands-on perpe-
trators, who are usually large in number, but also conict entrepreneurs and
leaders. The violence also targets victims en masse, sometimes based on dis-
crimination; victims are dehumanised and selected because of their group
membership. Furthermore, the crimes are of a widespread nature. The
wrongdoing is not isolated but forms part of a ‘broader pattern of actions and
institutional structures that systematically diminishes the status of certain in-
dividuals or groups.’ Under international law, the atrocities can amount to
grave human rights violations, crimes against humanity, war crimes and even
genocide (international crimes).
The characteristics of past crimes heavily impact upon the design and
implementation of punishment. Resources to prosecute, judge and enforce
criminal sanctions are generally limited, especially compared to the scale of
the crimes and the subsequent societal and material destruction. Practical
impediments to the application of criminal punishment are manifold. For
instance, the justice system can be overburdened by the vast volume of crimes
Murphy, supra note 13, p. 52.
Ibid., p. 53.
Mark Drumbl, Atrocity, Punishment and International Law (Cambridge University Press,
Cambridge, 2007) p. 26.
Ibid., pp. 41–2; Murphy, supra note 11, p. 64; Frank Haldemann, ‘Another Kind of Justice:
Transitional Justice as Recognition’, 41 Cornell International Law Journal (2008) 693.
Murphy, supra note 11, p. 64
Rome Statute of the International Criminal Court; Articles 6, 7 and 8.
Drumbl, supra note 24, p. 44.
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and defendants, evidence may have been destroyed, state agents and public
ocials may not be trustworthy, public institutions might be corrupt or lack
suciently trained and funded police and legal staf. In addition, other ur-
gent social and economic problems are usually competing for scarce resources,
which makes it virtually impossible to sanction every possible perpetrator for
every possible crime. Therefore, mechanisms for the prioritisation of cases –
and for the selection of those to be punished – are often developed and ex-
traordinary punishment modalities implemented. For instance, punishment
may be focused only on those considered most responsible, i.e., those giving
the orders to commit crimes. No transitional society has managed to imple-
ment criminal proceedings followed by punishment proportionate to the scale
of sufering and harm for each and every perpetrator of such violence.
The large-scale, political and complex character of the past violence un-
doubtedly afects the time of transition itself. Societies facing political transi-
tions are usually immersed in situations of political instability and struggle
for political consolidation. In these settings, the consolidation of a political
order or the construction of new power structures is taking place. Political
transitions from war to peace through peace negotiations constitute a para-
digmatic example of a political transition. In times of transition, the politi-
cal future of the community can be deeply uncertain and political authority
remains contested. It may still not be clear who has the right to govern and to
set and enforce norms of interaction. In contexts of transition from war to
peace, new norms and political processes are being consolidated, including
penal normative frameworks.
Oce of the United Nations High Commissioner for Human Rights, Rule-Of-Law Tools for
Post-Conlict States, Prosecution Initiative (//06/4), <www.ohchr.org/Documents/
Publications/RuleoawProsecutionsen.pdf>, accessed 31 October 2018.
Murphy, supra note 13, p. 9.
Xabier Aguirre, Prosecuting the Most Responsible for International Crimes: Dilemmas of
Denition and Prosecutorial Discretion, <www.academia.edu/2571646/Prosecuting_the_
most_Responsible_for_International_Crimes_Dilemmas_of_Denition_and_Prosecutori-
al_Discretion>, accessed 31 October 2018; Claus Roxin, ‘Crimes as Part of Organized Power
Structures’, 9 Journal of International Criminal Justice (2011) 193–206.
Pablo De Greif, ‘Theorizing Transitional Justice’, in Jon Elster, Rosemary Nagy and Melissa
Williams (eds.), Transitional Justice: Nomos (New York University Press, New York, 2012)
p. 35.
Murphy, supra note 11, p. 60.
Ibid., p. 64.
Ibid., p. 60.
Ibid., p. 64.
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Against the background of political transitions through peace negotiations,
societies not only deal with the past but also look to the future and pursue
broad societal goals, such as (further) democratisation, reconciliation or pros-
perity. Nevertheless, what these concepts mean in practice is constantly
being debated and contested within these communities. These political
objectives inform public decisions and shape public policies, including penal
policies. In other words, in political transitions, whether they are negotiated or
imposed unilaterally, punishment is often instrumental for social transforma-
tion and pursues a plethora of broader political and societal goals. Punishment
is thus no longer an end in and of itself, or the reaction of a society to a crimi-
nal ofence or an ethical response to the crimes. Instead, it is an instrument to
achieve broader social goals.
3 Understanding and Evaluating Punishment in Negotiated
Transitions: The Necessity of a Sociological Approach
In public imagination, criminal punishment for the most serious ofences is
commonly reduced to the use of incarceration. In fact, the use of diferent mo-
dalities of sanctions, such as home detention, community service, electronic
monitoring, restorative measures, or neurotechnological treatments is
still debated. This discussion is nevertheless incipient. In practice, interna-
tional criminal courts and tribunals have only applied imprisonment as sanc-
tion for international crimes. This leads some to argue that incarceration is
the only acceptable penalty for this type of crime regardless of the context
in which punishment is embedded. Nevertheless, in contexts of political
transition, criminal punishment, even for the gravest crimes, has either been
Ruti Teitel, Rethinking the Rule of Law after Communism (Central European University
Press, Budapest, 2005).
Jon Elster, Rosemary Nagy and Melissa Williams (eds.), Transitional Justice: Nomos
(New York University Press, New York, 2012) p. 28.
Jesper Ryberg, ‘Punishment and Political Philosophy’, in W. Thompson (ed.), Oxford Re-
search Encyclopedia of Politics (Oxford University Press, Oxford, 2016), p. 10.
Andrew von Hirsch, Julian Roberts, Anthony Bottoms, Kent Roach and Mara Schif (eds.),
Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (Hart,
Oxford, 2003).
Lene Bomann-Larsen, ‘Voluntary Rehabilitation’, 6 Neuroethics (2011) 65–77.
Barbora Holá and Joris Van Wijk, ‘Life after Conviction at International Criminal Tribu-
nals: An Empirical Overview’, 12 Journal of International Criminal Justice (2014) 109–32.
Procuraduría General de la Nación, supra note 6.
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‘sacriced’ for the sake of peace and reconciliation, criticised as being vic-
tor’s justice, or shaped to promote the cessation of violence or the demo-
bilisation of combatants, as in Colombia in 2005 (Law 975 of 2005) and again,
more recently, in 2016. This raises the question, what theoretical tools exist to
understand and eventually evaluate diferent modalities of criminal punish-
ment of past atrocities? What constitutes a ‘just criminal punishment’ in con-
texts of political transition?
Studies on punishment in contexts of political transition discuss only two
issues. Firstly, they question whether criminal punishment is an opposite reac-
tion to atrocities. For instance, Murphy challenges the suitability of ‘legal pun-
ishment’ to hold perpetrators accountable for past wrongs. For her, other kinds
of responses may in fact be more apt for dealing with wrongdoers. Similarly,
Drumbl questions the extent to which ‘ordinary’ punishment applied by inter-
national criminal courts and tribunals is a suitable response for extraordinary,
international crimes. Secondly, these authors discuss justications of pun-
ishment in transition. Murphy argues that punishment in contexts of political
transition cannot be justied as retributive given that this reasoning is meant
to operate in circumstances of reasonably stable democracies. Along the
same lines, Drumbl questions the applicability of conventional punishment
justications, such as retribution, or deterrence, for penalties handed out by
the international criminal tribunals. Indeed, both retrospective and prospec-
tive theories of criminal punishment are insucient -in and of themselves- to
grasp the complexities of punishment in transition.
Retrospectively, criminal punishment is justied by giving ofenders what
they deserve, retribution. In this sense, penal desert is not only necessary
but sucient reason for punishment. Punishment is then ofence-centred
Louise Mallinder, ‘Can Amnesties and International Justice Be Reconciled?’, 1 Internation-
al Journal of Transitional Justice (2007) 208–230; Roth-Arriaza, supra note 18; Francesca
Lessa, Tricia D. Olsen, Leigh A. Payne, Gabriel Pereira and Andrew G. Reiter, ‘Overcom-
ing Impunity: Pathways to Accountability’, 8 International Journal of Transitional Justice
(2014) 75–98.
Gary Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton
University Press, Princeton, 2000), p. 8.
Murphy, supra note 11.
Drumbl, supra note 24, pp. 23–45.
Murphy, supra note 13, pp. 84–96.
Drumbl, supra note 24, pp. 149–173.
David Dolinko, ‘Punishment’, in Deigh John and David Dolinko (eds.), The Oxford Hand-
book of Philosophy of Criminal Law (Oxford University Press, Oxford, 2011) 403–440; Kier-
an McEvoy and Louise Mallinder, ‘Amnesties, Transitional Justice and Governing through
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and seen per se as an appropriate response to crime, regardless of its conse-
quences. Under this logic, the penal distribution should follow the principle
of proportionality between the seriousness of a crime and the severity of the
punishment. According to the proportionality metric, the graver the ofense,
the more severe the sanction. This approach is nevertheless problematic as
to what proportionate punishment in practice entails. Usually, it is argued that
the ofender deserves harsh or burdensome treatment. More recently, other
authors have argued that the wrongdoer deserves censure or condemnation
and this is precisely what distinguishes a criminal punishment from other
types of burden.
Theoretically, penal distribution according to a desert-based approach re-
quires knowing why a crime is more (or less) serious than others and why a
penalty is more (or less) severe than others. Generally, the gravity of a crime
is determined on the basis of the harm caused and the culpability of the ofend-
er. Furthermore, in the case of imprisonment, the severity of the sanction is
usually measured in terms of its duration. However, in theory, retributivism
also accepts diferent types of punishment as long as the ordinal proportionali-
ty (i.e. more serious crimes should be punished more severely than less serious
ofenses) is preserved. According to a retributive logic, international crimes
deserve the most severe penalties available. However, purely retributive rea-
soning when it comes to punishing international crimes can be challenged for
at least two reasons. First, it is debatable whether a punishment reecting the
vast amount of harm and culpability of ofenders convicted of international
Mercy’, in Jonathan Simon and Richard Sparks (eds.), The Sage Handbook of Punishment
and Society ( Publications Ltd, London, 2013) 434–462.
Duf, supra note 11, p. 19.
Drumbl, supra note 24, p. 155.
Lawrence Davis, ‘They Deserve to Sufer’, 32 Analysis, Oxford Academics (1972) 136–140;
John Kleinig, Punishment and Desert (Martinus Nijhof, The Hague, 1973), p. 49.
Christopher Bennett, The Apology Ritual (Cambridge University Press, Cambridge, 2008);
Duf, supra note 11; Dan Markel, ‘What Might Retributive Justice Be?’, in Mark White (ed.),
Retributivism: Essays on Theory and Policy (Oxford University Press, New York, 2011) 49–72;
Bill Wringe, An Expressive Theory of Punishment (Palgrave MacMillan, Basingstoke, 2015).
Andrew von Hirsch, Censure and Sanctions (Clarendon Press, Oxford, 1993), p. 29.
Ibid.; Alec Walen, ‘Retributive Justice’, in Edward Zalta (ed.), The Stanford Encyclopedia
of Philosophy (Metaphysics Research Lab, Stanford University, 2016), <https://plato.stan-
ford.edu/archives/win2016/entries/justice-retributive/>, accessed 1 November 2018.
Von Hirsch, supra note 55.
Andrew von Hirsch, ‘Punishments in the Community and the Principles of Desert’, 20
Rutgers Law Journal (1989) 595–616.
Drumbl, supra note 24, p. 60.
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crimes could ever exist. Additionally, a strict retributive logic makes it impos-
sible to argue that in some contexts a lack of punishment or its deviation from
the proportionality standard (too severe or too lenient) may be acceptable if
justied by other future oriented penal goals, such as deterrence or rehabili-
tation, or broader societal goals. Under retributive logic, broader (positive)
societal goals pursued in many contexts of political transition, such as the
termination of armed confrontation or political stability, should not impact
upon the proportionality equilibrium.
According to the prospective theories of punishment, punishment is jus-
tied by protecting societies from future crimes through any of the follow-
ing: deterrence, rehabilitation or incapacitation. These theories are based
on utilitarian, ethical considerations, according to which the right act is the
one that produces the best consequences. Therefore, justied sanctions are
those that maximise the benecial efects produced by the punishment, while
keeping the sufering of the wrongdoer to a necessary minimum. However,
in practice, utilitarian justications are contingent on empirical evidence on
whether a specic punishment indeed causes the intended outcomes and
whether these can be achieved by less harmful means. This evidence is com-
plex and very dicult to gain. There are additional challenges to utilitarian
theories in the case of punishment of international crimes. Some question
the uncritical adoption of the utilitarian theories from the realm of ordinary
criminality. Perpetrators of international crimes arguably do not necessar-
ily counterbalance the risk of prosecution with the (political or ideological)
gains ensuing from the commission of the crimes, as deterrence theory would
Stuart Beresford, ‘Unshackling the Paper Tiger – The Sentencing Practices of the Ad Hoc
International Criminal Tribunals for the Former Yugoslavia and Rwanda’, 1 International
Criminal Law Review (2001) 33–90.
Jesper Ryberg, ‘Mass Atrocities, Retributivism and the Threshold Challenge’, 16 Res Publica
(2010) 169–179.
Dolinko, supra note 50, p. 407.
Jesper Ryberg and Angelo Corlett (eds.), Punishment and Ethics: New Perspectives
(Palgrave MacMillan, Basingstoke, 2010), p. 4.
Ibid., p. 12.
Ibid., p. 5.
Leslie Vinjamuri, ‘Deterrence, Democracy, and the Pursuit of International Justice’, 24
Ethics & International Afairs (2010) 191–2011.
David Wippman, ‘Atrocities, Deterrence, and the Limits of International Justice’, 23 Ford-
ham International Law Journal (1999) 473–88; Kate Cronin-Furman, ‘Managing Expecta-
tions. International Criminal Trials and the Prospects for Deterrence of Mass Atrocity’, 7
International Journal of Transitional Justice (2013) 434–54.
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assume. And even if they do so, they most probably view the risk of prosecu-
tion as negligible. Others emphasise a lack of empirical proof regarding the
deterrence of international crimes via punishment. Indeed, empirical data in
this respect is scarce and dicult to collect. Moreover, if data is available, the
establishment of a valid and reliable correlation between the actions of crimi-
nal tribunals such as the International Criminal Court, and the uctuation of
violence is problematic.
Therefore, a restorative approach to dealing with past atrocities in the con-
text of political transition is often juxtaposed as a more appropriate response
compared to criminal punishment. Restorative justice seeks to repair the harm
caused by crime, which is conceptualised as a conict between ofenders and
victims. It emphasises the humanity of both ofenders and victims and aims
to engage all stakeholders, including community members, in resolving the
conict. It seeks to repair social connections and relationships rather than
retribution. In addition, it aims at restoring the family and collective ties of
both victims and perpetrators. Restorative justice is materialised within crim-
inal procedures through diferent acts, such as possibilities for economic and
Ralph Henham, Punishment and Process in International Criminal Trials (Ashgate, Farn-
ham, 2005), p. 141; Theodor Meron, ‘From Nuremberg to The Hague’, 149 Military Law Re-
view (1995) 110.
Wippman, supra note 67, p. 479.
William Schabas, The International Criminal Court: A Commentary on the Rome Statute
(Oxford University Press, Oxford, 2010), p. 61.
International Nuremberg Principles Academy, Two Steps Forward, One Step Back: The De-
terrent Efect of International Criminal Tribunals, <www.nurembergacademy.org/lead-
min/media/pdf/publications/DETERRENCEPUBLICATION.pdf>, accessed 31 October
2018.
Lucia Zedner, ‘Reparation and Retribution: Are They Reconcilable?’, 57 The Modern Law
Review (1994) 228–250.
Tony F. Marshall, Restorative Justice: An Overview (Home Oce Research Develop-
ment and Statistics Directorate, London, 1992), <https://276dd27f-a-62cb3a1a-s-sites
.googlegroups.com/site/mononal/legitimidade-sistema-penal/occ-resjus.pdf?
attachauth=ANoY7cpUD_F0KCjYLBNpxcwR604QRNqKY8mnMh_UxkaXnPikeMJVzQD-
b4Teb2Pq76cWP4-1lJnkZ6vH94Mui3vihrZwN5szi_PB4opcCK6Mx69Iw46IzXMFWB-
CbIUuTYy3i4h5hzqOKNetHsTaJq0gvgQc4cAxJZkkbHPI-Xpl3IXuAPjSGB12G4thhfKeF-
wdaP02oqA8R8ikDS1Ouj2aVRMOO0kC5sMx60wdZwzPgn_HgKtqdEVClsHN4GuvbAfUn
XwNqR4RpEm&attredirects=1>, accessed 31 October 2018.
Martha Minow, Between Vengeance and Forgiveness (Beacon Press, Boston, 1992), p. 92.
John Braithwaite, ‘Restorative Justice and a Better Future’, in Gerry Johnstone (ed.), A
Restorative Justice Reader (Routledge, New York, 2003) 83–97.
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symbolic acts of reparations for survivors and for devastated communities,
acts of reintegration of ofenders into the community through, for instance,
public acknowledgement and apologies. According to restorativists, societies
can heal deep wounds through dialogue between victims and perpetrators and
especially through the concession of pardons, which are believed to facilitate
the achievement of peaceful social order. Under the restorative justice para-
digm, international crimes could be pardoned if that would mean social ties
could be rebuilt. Nevertheless, to forgive and forget international crimes is
in practice problematic for several reasons, including the international legal
obligation to prosecute and punish gross human rights violations and interna-
tional crimes, and the victims’ rights to remedies.
Murphy recently coined a new theory of transitional justice, which is main-
ly concerned with the ‘just pursuit of societal transformation’. According to
the author, this pursuit becomes bound up with the process of responding to
past wrongs. Nevertheless, criminal punishment is not the only and certainly
not the best reaction. Instead, there is a wide range of responses to past atroci-
ties, directed to both victims and perpetrators, which might be appropriate
and tting given the character of violence and the context of political transi-
tion. In such circumstances, for Murphy, the core issue of punishment is not
equivalent to the core issue of retributive punishment. Therefore, criminal
punishment, in isolation, cannot satisfy the demands of justice. Furthermore,
even when implemented in conjunction with other non-punitive measures,
the design, implementation and evaluation of such punishment in transition
must be holistic. It must, on the one hand, contribute to the societal transfor-
mation pursued, and, on the other hand, respond to: (i) particular moral aims,
such as repudiation of the wrongs and pursuing accountability, (ii) the specic
nature of the wrong being addressed, (iii) the complex relationship among vic-
tims, perpetrators and third parties, and (iv) the particular cultural contexts in
which the response takes place.
Minow, supra note 74, pp. 91–117.
Ibid.
Rodrigo Uprimny and Maria Safon, Transitional Justice, Restorative Justice and Reconcili-
ation. Some Insights from the Colombia Case, < https://cdn.dejusticia.org/wp-content/up-
loads/2017/04/_name_recurso_55.pdf >, accessed 1 November 2018.
Ibid.
Rodrigo Uprimny, María Safon, Catalina Botero and Marino Esteban, ¿Justicia transicio-
nal sin transición? Verdad, justicia y reparación para Colombia, <www.dejusticia.org/wp-
content/uploads/2017/04/_name_recurso_201.pdf>, accessed 31 October 2018.
Murphy, supra note 13, pp. 160–192.
Ibid.
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Murphy’s transitional justice theory highlights that the rst step for evaluat-
ing punishment is to grasp the factual, contextual factors and circumstances
of a transitional moment. This is to say, to understand the complexities and
nuances of the society facing the political transition, the transition itself and
how punishment interplays therein. Punishment in transition needs to be
contextualised before being evaluated. In this respect, therefore, a sociologi-
cal perspective on punishment ofers a useful lens. This perspective highlights
the necessity of appreciating punishment taking into consideration its role,
signicance and efects in social life. For Garland, ‘we need to know what
punishment is in order to think what it can and should be’. Generally, pun-
ishment takes part in a complicated and multi-faceted reality and, in order
to grasp its essence it is in need of a thorough contextualisation. In order to
do this contextual analysis, it is necessary to explore the many dynamics and
forces in which punishment interplays to build up a complex picture of the
circuits of meaning and action, within which it functions.
Punishment as a social institution implies many diferent sorts of relation-
ships, which are in constant conict, tension and compromise. Therefore,
the large number of conicting forces at work need to be deconstructed,
described and analysed to grasp the meaning and function of punishment.
For Garland, ‘these swarming circumstances are only ever resolved into par-
ticular outcomes by means of struggles, negotiations, actions and decisions,
which are undertaken by those involved in the making and implementation
of policy’. A sociological perspective on punishment is particularly apposite
for deconstructing, describing and analysing a penal reaction to atrocities en-
acted and implemented in times of political transitions. It draws attention to
the context and situates the phenomenon in its social, cultural and political
environs. Punishment in transition is a particularly complex phenomenon,
which cannot be decontextualised and evaluated according to a single value-
based theory of punishment, which, as demonstrated above, can be deeply
problematic.
Garland, supra note 9.
Ibid., p. 10.
Ibid., p. 17.
Ibid., p. 285.
Ibid.
Calvin Morrill, John Hagan, Bernard Harcourt, and Tracey Meares, ‘Seeing Crime and
Punishment through a Sociological Lens: Contributions, Practices, and the Future’, Yale
Law School Faculty Scholarship Series (2005) 289–323.
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4 Punishment in Transition Negotiated in the Colombian Peace
Agreement with the -
In practice, political transitions are rarely clear-cut. Colombian eforts to come
to terms with its multi-factored and multi-layered internal armed conict
through bilateral peace talks with diferent armed groups have been referred
to as an example of ´transition without transition´. The expression highlights
the challenges of piecemeal attempts to reach peace partially and separately
with a violent group while confrontation continues with a diferent one. While
armed conict is not completely over in the country, the peace agreement with
the - is a clear example of a political transition. The - rebels
were one of the main actors of the conict initiated in the 1960s. In 2018 they
are a political party, which actually ran for the most recent congressional and
presidential elections. This section presents characteristics of the negotiated
transition with the - in Colombia and contextualises punishment ne-
gotiated to address conict-related crimes within the newly established Spe-
cial Jurisdiction for Peace.
4.1 The Political Transition Triggered by the Peace Negotiation with the
-
Over the past 50 years, Colombia has experienced extreme violence, often
amounting to international crimes and grave human rights violations, perpe-
trated by left and right-wing armed groups, and by state agents. All armed
actors have attacked the civilian population. For instance, guerrilla forces
have kidnapped, committed acts of pillage, recruitment of children, forced
displacement, and planted landmines throughout the country. The military
forces have committed acts of torture, extrajudicial detentions and executions
and enforced disappearances. The available statistics reveal the grave nature
and large scale of conict-related crimes. Up to October 2018, there have been
8,760,290 ocially registered victims. Approximately 220,000 persons have
been assassinated for political reasons between 1958 and 2012. According to
Uprimny et al., supra note 80.
Leftists armed groups, such as the - and the Ejército de Liberación Nacional ()
and paramilitary forces such as the Autodefensas Unidas de Colombia ().
Centro Nacional de Memoria Histórica, ¡Basta ya! Colombia: memorias y dignidad. Im-
prenta Nacional, <www.centrodememoriahistorica.gov.co/descargas/informes2013/
bastaYa/basta-ya-colombia-memorias-de-guerra-y-dignidad-2016.pdf>, accessed 31 Octo-
ber 2018.
Ibid.
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the Oce of the Prosecutor of the International Criminal Court (-),
many of these acts allegedly amount to crimes against humanity and war
crimes.
In order to be able to fully understand the peace negotiations, and contextu-
alise the Colombian punishment in transition, it is necessary, if only briey, to
outline its extremely complex historical, socio-economic, political and institu-
tional context. Various factors such as the political agenda of the of ght-
ing for social justice; their reliance on and furtherance of illegal economies,
such as drug tracking; the corrupt political and justice system in Colombia
or involvement of foreign States (such as ) and other actors, are often con-
sidered to have fuelled and prolonged the armed conict. Indeed, there were
several unsuccessful attempts to end the conict and to negotiate peace. The
rst negotiation with a faction of the - took place in 1984 and there was
another failed attempt in 1999. From that time on, at least four relevant sets
of peace talks have taken place with other guerrilla groups and a paramilitary
group leading to a partial cessation of hostilities and to granting of amnes-
ties, pardons and reduced terms of imprisonment (see, for instance, Law 77 of
1989 and Law 975 of 2005). In 2012, the government engaged in peace talks with
the - again and a nal agreement was reached in 2016.
Colombian scholars have asserted that military considerations on both
sides played a major role in initiating, continuing and bringing the recent set
of peace negotiations to a successful end. From 2002 to 2012, the ‘war mod-
el’ of the - had broken down for political, military and technological
reasons. The State military forces were successfully implementing an efec-
tive new strategy consisting of attacking high-level guerrilla units and their
funding sources. During those years, the - lost most of its leaders and
saw the highest rate of individual demobilisations in its history. In response,
the guerrilla group changed its war model to a more strategically defensive
one, for instance by targeting the mining and energy sectors and putting more
Oce of the Prosecutor of the International Criminal Court, supra note 2.
Comisión Histórica del Conicto y sus Víctimas, Contribución al entendimiento del conlic-
to armado en Colombia, <www.altocomisionadoparalapaz.gov.co/mesadeconversaciones/
PDF/Informe%20Comisi_n%20Hist_rica%20del%20Conicto%20y%20sus%20
V_ctimas.%20La%20Habana%2C%20Febrero%20de%202015.pdf>, accessed 31 October
2018.
In 1990 with the Movimiento 19 de Abril (M-19) guerrilla group; from 1991 to 1994 with ve
minor guerrilla groups, and in 2003 with the Autodenfensas Unidas de Colombia ().
Ariel Avila, Fundación Paz y Reconciliación, Cómo es eso de negociar en medio del conlicto?,
<www.pares.com.co/carrusel/observatorio-violencia-politica-en-colombia-2013-2017-2/>,
accessed 4 November 2017.
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emphasis on their political and ideological aspirations. The - managed
to recuperate militarily to an extent, but it did not continue growing before
and during the negotiation process.
By 2012, both the - and the government realised their inability to
achieve a military victory. This, together with other considerations, inuenced
the decision to go back to the negotiating table. For instance, the -
renewed leadership saw leftist politicians (Bolivia, Ecuador, Venezuela), and
even former combatants (Uruguay and Brazil) coming to power in neighbour-
ing countries. On the other hand, the government saw the risk of facing a guer-
rilla group lacking a strong political leadership, without which it would not
be possible to achieve any agreement. Moreover, the implementation of the
governmental political agenda of modernisation and focus on issues such as
rural development, political participation and drug tracking was, to an ex-
tent, dependent on the cooperation of the -. Furthermore, the ethical
issue of avoiding the loss of lives and sufering of members of both the military
and of the guerrilla groups must not be underestimated.
In 2012, the parties dened a negotiation agenda. It included six items,
namely: (i) rural reform and agrarian development policy, (ii) political partici-
pation, (iii) illicit drugs policy, (iv) end of conict, including demobilisation
and disarmament, (v) rights of victims, including criminal accountability and
punishment, and (vi) implementation and endorsement. The fth point was
arguably one of the most challenging and politically charged parts of the nego-
tiations. Negotiating parties publicly announced that justice for victims was not
limited to criminal accountability and that victims’ rights included acknowl-
edgement of responsibility, truth, reparation, guarantees of non-repetition
and security and reconciliation. This steered public debate on the extent to
which the parties would comply with international obligations to prosecute
Mario Aguilera, ‘Las : auge y quiebre de su modelo de guerra’, 26 Análisis Político
(2013) 85–111; L. Martínez, Los Cambios en la Estrategia Militar de Las en la Última
Década, Fundación Paz y Reconciliación, <www.pares.com.co/paz-y-posconicto/gru-
pos-armados-ilegales/farc/los-cambios-en-la-estrategia-miliar-de-las-farc-en-la-ultima-
decada/>, accessed 26 October 2017.
Kristian Herbolzheimer, Norwegian Peacebuilding Resource Centre, Innovations in the
Colombian Peace Process, <www.c-r.org/downloads/NOREF_CR_Report_Colombia%20
Innovations_nal.pdf>, accessed 31 October 2018.
Government of Colombia and -, Declaración de Principios para la Discusión del
Punto 5 de Agenda: Víctimas,<www.altocomisionadoparalapaz.gov.co/mesadeconver-
saciones/PDF/Comunicado%20Conjunto%2C%20La%20Habana%2C%2007%20de%20
junio%20de%202014%2C%20Versi_n%20Espa_ol.pdf>, accessed 31 October 2018.
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and sanction, as established in international treaties ratied by Colombia, par-
ticularly in the Rome Statute of the International Criminal Court.
During the negotiations, two relevant external actors were included to per-
sonally present their views and suggestions. Firstly, a group of sixty victims
afected by the - guerrilla, state agents and paramilitary groups, cho-
sen by the United Nations, met face to face with the negotiators. Secondly,
negotiating parties held meetings with representatives of eight most impor-
tant companies of the country (Promigás, Grupo Sura, Bancolombia, Grupo
Manuelita, Alquería, Carvajal, Nutresa, ). In addition, the negotiation
was opened, from beginning to end, to civil society members to submit their
views. Approximately 63,000 submissions were received, out of which 27,000
related to issues of victims’ rights. Also, four public forums were held in
Colombia. According to the Colombian Government, approximately 3,000
victims participated in these meetings. Final rapporteurs on each forum
gathered more than 22,000 additional proposals which were taken directly to
the negotiators.
A rst peace agreement was reached in September 2016. Subsequently, the
peace accord was submitted to popular approval through a plebiscite con-
ducted on 2 October 2016. In a surprising outcome, and for a narrow major-
ity (50,2%), Colombians voters rejected the agreement. Some commentators
claimed that the main reason for the popular rejection was the extraordinarily
lenient sanctions envisaged for perpetrators of atrocities. Indeed, the fact
that guerrilla leaders might avoid imprisonment proved to be highly contro-
versial. Nevertheless, other items of the accord were equally unpopular. For
example, provisions to open the door for the political participation of former
Cf. provisions of the Rome Statute of the ratied by Colombia in 2002; International
Covenant on Civil and Political Rights, ratied in 1969; International Convention on the
Elimination of All Forms of Racial Discrimination, ratied in 1981; Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratied in
1987; International Convention for the Protection of All Persons from Enforced Disap-
pearance, ratied in 2012; and American Convention on Human Rights, ratied in 1973.
Andrés Ucrós, ‘What Is the Colombian Peace Process Teaching the World?’, 29 New Eng-
land Journal of Public Policy (2017) 1–7.
Juanita Goebertus, Interview, International Center for Transitional Justice, <www.face-
book.com/theICTJ/videos/10154838748584692/>, accessed 31 October 2018.
Ibid.
Ucrós, supra note 101.
Paul Williams, ‘The Colombian Referendum: A Lesson on Peace without Justice’,
Hungton Post, <www.hungtonpost.com/entry/the-colombian-referendum-a-lesson-
on-peace-without_us_57f7d9dfe4b090dec0e71064>, accessed 31 October 2018.
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members of the - for the legislative elections of 2018 and provide
economic support for their reintegration process were controversial. In ad-
dition, some Colombians feared that the implementation of the agreement
would usher in a castro-chavista communist catastrophe and a prominent
conservative and religious sector contended that the mention of ‘gender’ as
a relevant category and the protection of ’s rights within the agreement
was evidence of an attack against family values.
Irrespective of the reasons for the plebiscite results, the Government react-
ed swiftly and the talks on the most controversial issues were re-opened. The
signing of a new document took place in November 2016. This time, however,
no popular vote was scheduled. The provisions on punishment were further
claried yet not fundamentally changed. For instance, conditions for the en-
forcement of sanctions were agreed upon and additional criteria to evaluate
crimes that could be amnestied were included. The Government declared that
the new renegotiated agreement would unite the deeply divided country.
For the rebel group, this document reected the limits of what they could rea-
sonably concede. This new deal, nevertheless, still did not satisfy a strong
political opposition.
In any case, negotiated criminal punishment, described in the next section,
can neither be decontextualised from the dicult conict history and crimes it
is meant to address nor from the equally complex and nuanced national politi-
cal and societal circumstances driving the transition and the broader societal
and political goals it pursues.
4.2 Punishment in the Peace Agreement: Special Jurisdiction for Peace
The peace agreement includes the creation of a Comprehensive System to
Satisfy Victims’ Rights to Truth, Justice, Reparation and Non-Repetition. The
Comprehensive system comprises judicial and non-judicial mechanisms,
such as Special Jurisdiction for Peace (), which is in charge of matters of
criminal accountability for conict-related crimes; a Truth Commission; a
Unit for the Search of Disappeared Persons; and schemes for reparation and
Mauricio Vargas, Matar sí paga, <www.eltiempo.com/opinion/columnistas/mauricio-var
gas/matar-si-paga-la-idea-que-se-debe-acabar-en-colombia-102492>, accessed 31 October
2018.
Juanita León, Los temores del No: 4. El castrochavismo, <http://lasillavacia.com/historia/
los-temores-del-no-4-el-castrochavismo-58133>, accessed 31 October 2018.
Santos, supra note 7.
Timoleón Jimenez, Timochenko arma que con el nuevo acuerdo “está triunfando la paz,
<www.cablenoticias.tv/vernoticia.asp?WPLACA=86644>, accessed 1 November 2018.
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non-repetition. These bodies operate in a coordinated manner through novel
institutional and procedural frameworks.
The is based upon ve general principles. First, amnesties are granted
for political crimes as dened under domestic criminal law, including the
act of rebellion and the killing of combatants. These acts are therefore ex-
empted from criminal accountability and sanctions. Second, those crimes that
cannot legally be amnestied shall be investigated and punished. These ofenses
comprise international crimes, namely genocide, crimes against humanity and
war crimes. Third, with respect to these crimes a special set of sanctions with
a strong restorative dimension is available for perpetrators who acknowledge
their responsibility. Fourth, the prosecutes and sanctions state agents,
guerrilla members and third parties that directly or indirectly participated in
the commission of international crimes. The system specically targets those
considered to be the most responsible. Fifth, participation in this account-
ability scheme is conditional. To receive reduced or restorative sanctions,
defendants must comply with obligations related to truth, reparation and
non-repetition.
The comprises of ve new institutions: the Tribunal for Peace, in charge
of delivering judgments and meting out punishments; three Chambers of Jus-
tice (Chamber for Acknowledgement of Truth and Responsibility, Chamber for
the Denition of Legal Status and Chamber for Amnesties and Pardons); and
one Investigative Unit.
The whole system is based on a logic of incentives and threats, which in
turn, are mediated by conditions. The basic scheme is a combination of pull
and push factors, aimed to compel perpetrators to behave in a certain way
while at the same time to serve as a deterrent mechanism: If you do x (cease
In Colombia, a political crime is a restricted category encompassing non-grave conducts
committed against the State and the Constitutional order. See: Colombian Criminal Code,
Articles 467–472.
The legal framework of the Special Jurisdiction for Peace is comprised of the following
norms: Acto legislativo 01 de 2017; Judgment C-674 de 2017 issued by the Colombian Con-
stitutional Court and by which the Acto legislativo 01 de 2017 was revised and approved;
Acto legislativo 02 de 2017; Ley 1820 de 2016; Judgment C-007 de 2018 issued by the Colom-
bian Constitutional Court and by which the Ley 1820 de 2016 was revised and approved;
Decreto Ley 277 de 2017; Judgment C-025 de 2018 issued by the Colombian Constitutional
Court and by which the Decreto Ley 277 de 2017 was revised and approved and Ley 1922 de
2018. Furthermore, the bill “Proyecto de Ley Estatutaria número 08 de 2017, Senado – 016 de
2017, Cámara”, was revised and approved by the Colombia Constitutional Court by judge-
ment C-080 de 2018. Nevertheless, as of the end of October 2018, it is pending Presidential
approval.
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violence and disclose and recognise truth), then the State will ofer y (restorative
sanctions, amnesties and pardons) unless you do z (not telling the truth and not
contributing to reparation), in which case the State will take away y and will
apply w (imprisonment) instead. The whole system was designed to operate
in a way that a reasonably rational defendant, after weighing up the costs and
benets, will conclude that he or she has more to gain by cooperating with it
rather than by avoiding it.
In practice, those alleged to be the most responsible perpetrators of grave hu-
man rights violations and international crimes that confess, tell the truth and
acknowledge responsibility in a prompt, complete and detailed manner will re-
ceive restorative sanctions. These sanctions have two main characteristics. First,
convicted persons will be subjected to a regime of ‘efective restriction of liberty ’
for a period of between ve to eight years. The ‘efective restriction of liberty’
consists of limiting and controlling the rights of free movement and residency.
Second, sanctions are restorative by nature. For instance, in rural areas, they will
require participation in or implementation of programs for: (i) reparation of
displaced peasants, (ii) environmental protection, (iii) construction and repara-
tion of infrastructure, (iv) rural development, waste disposal, electrication and
improvement of communications, (iv) substitution of illegal crops, (v) devel-
opment of infrastructure necessary for agricultural trade and (vi) removal and
eradication of explosive remnants of war, unexploded weapons and landmines.
Defendants who belatedly confess the truth and acknowledge their respon-
sibility will be subjected to reduced terms of imprisonment from ve to eight
years. The level of participation of an ofender in a crime may mitigate the
severity of the sanction. Accordingly, those considered not to be the most re-
sponsible may receive prison terms from two to ve years. Furthermore, in-
dividuals who do not confess the truth or admit their responsibility, but are
nonetheless found guilty, will face imprisonment from fteen to twenty years,
in contrast to the maximum penalty of sixty years they would face in the or-
dinary system of justice, according to Article 31 of Law 599 of 2004. The pos-
sibility of longer terms of imprisonment is meant to operate as a ‘stick’ or as a
deterrent mechanism, while the avenue to reduced prison terms is the ‘carrot’
that seeks to motivate defendants to come forward and confess.
4.3 Understanding the Punishment Controversy in Colombia
The most controversial aspect of the Colombian punishment in transition
turned out to be the substitution of potential lengthy imprisonment for perpe-
trators of international crimes with restorative sanctions. Critics rely on tradi-
tional justications of punishment, i.e., retributive and utilitarian, to evaluate
and question the envisaged sanction regime. Examples include assertions
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such as, ‘the sanctions are gross and manifestly inadequate since they are not
proportionate to the gravity of the crimes, (…) they are a comedy’ or ‘total
impunity will be the mother of new violence’. Indeed, Colombian criminal
law is based on largely retributive considerations and severe incarceration
terms are part of the criminal policy. Under ordinary circumstances, the
Colombian criminal code provides for up to sixty years of imprisonment for
conduct amounting to international crimes. Against this background, punish-
ment, based on non-retributive and non-traditional bases, for the most seri-
ous violence and for those considered to be the most responsible is clearly
unorthodox. Nevertheless, to claim that the Colombian agreement amounts
to full impunity appears to be incorrect. The new sanctioning regime includes
restrictions on the rights to liberty and residence and makes participation in
social service projects mandatory for convicted perpetrators. Moreover, the
sanctions depend on the ascertainment of criminal liability adjudicated by a
special tribunal.
The sanctioning regime negotiated in Colombia, before being evaluated,
needs to be contextualised within its transitional setting, as argued in
Sections2 and 3, and assessed accordingly. In particular, there are three key
contextual factors essential for understanding punishment in the Colombian
transition.
Firstly, as demonstrated in the statistics presented above, the crimes pun-
ished by the are acts of mass atrocity violence perpetrated over a time
span of 50 years, leaving behind mass destruction and multiplicity of vic-
tims. The violence implicated a multiplicity of individuals and actors in vari-
ous roles and bearing diferent degrees of responsibility. In order to address
crimes committed on such a wide scale within an ordinary criminal justice
system, employing conventional criminal trials and penalties, would clearly
be impossible. Creative solutions were necessary to ascertain at least a certain
level of accountability, for as many perpetrators as possible. By incentivising
defendants to come forward and uncover the truth for exchange of restorative
or reduced sanctions, the punishment designed for the reects pragmat-
ic considerations of pursuing justice in a negotiated transition from war to
peace.
Secondly, punishment was designed within a peace negotiation with the
largest guerrilla group of the country, which has proven capable of political
Procuraduria General de la Nación, supra note 6.
Uribe, supra note 6.
Colombian Criminal Code, Articles 3–4 and Constitutional Court of Colombia, Judge-
ment C-144 of 1997.
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destabilisation and of large-scale violence with lethal impact. The agreement
is the product of bargaining of two opposing armed forces that fought each
other for more than half a century without one being able to defeat the oth-
er. Peace negotiations entail the nding of a common ground between op-
posite interests. In the Colombian case, the negotiations found common
ground between the refusal of the rebels to nish peace negotiations com-
pletely deprived of their liberty and the obligation of the State to punish
international crimes and grave human rights violations. This is ‘a cooperative
punitive solution’ that does not necessarily entail deprivation of liberty and
jailtime. The negotiating parties stated that they pursued as much justice as
possible within the political moment. The question of punishment was ne-
gotiated as one additional piece of a bigger bargaining process, in which nego-
tiators’ interests on land redistribution, political participation, drug-tracking
issues, and justice and impunity were balanced against each other. Therefore,
punishment cannot be isolated from all the other issues at the table and was
arguably shaped and formed by the gains and losses of each party on the other
items of the agenda.
Finally and relatedly, the punishment agreed upon by the Colombian gov-
ernment and the - seeks to achieve broader societal goals, such as the
achievement of a stable and durable peace, the promotion of peaceful coexis-
tence in the country, cessation of hostilities, the prevention of new violence,
the reintegration of former combatants and reconciliation. Moreover, since
the is part of the new system of administration of (transitional) justice, the
promotion of the rule of law is also one of its key objectives. All these objec-
tives were arguably considered and factored in by the negotiating parties when
designing the and its sanctioning regime.
Jimenez, supra note 109.
Colin Clarke and Cristopher Paul, Corporation, From Stalemate to Settlement Les-
sons for Afghanistan from Historical Insurgencies that Have Been Resolved through Negotia-
tions, <www.rand.org/content/dam/rand/pubs/research_reports/RR400/RR469/RAND_
RR469.pdf>, accessed 31 October 2018.
Ivan Márquez, “Para los guerrilleros cero cárcel”: Iván Márquez, <www.semana.com/
nacion/articulo/ivan-marquez-dice-que-guerrilleros-de-las-farc-no-pueden-ir-la-carcel/
418869-3>, accessed 31 October 2018; Zeuxis Pausivas, Ko Annan se equivoca, no vamos
a pagar ni un día de cárcel: , <www.semana.com/nacion/articulo/farc-dicen-que
-no-pagaran-carcel-en-respuesta-declaraciones-de-ko-annan/419700-3>, accessed 31
October 2018.
Government of Colombia and -, supra note 99.
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Given the past crimes, and the momentum of peace negotiations and the tran-
sitional context steered towards broader political and societal transformation,
the Colombian punishment in transition needs to be viewed holistically
and evaluated accordingly. The following section, based on the Colombian
experience, proposes a list of contextual factors to be taken into consideration
for such a holistic evaluation of punishment in negotiated transitions.
5 Contextual Factors Shaping Punishment in Negotiated Transitions
The Colombian case reveals how the particular circumstances of peace ne-
gotiations can shape and inuence the design of penal measures even for the
most serious crimes. It shows that there are factors, beyond the crime and the
perpetrator, that shape the design, type and modality of criminal punishment
in such transitional contexts. This section briey outlines general, theoretical
considerations on possible contextual factors that impact upon how punish-
ment is negotiated and designed in peace agreements. Each peace negotiation
involves a conict. In peace negotiations the resolution of armed confronta-
tion is dependent on a compromise between adversaries, which would not
have cooperated otherwise. Compromise is at the core of a peace agreement
and punishment, when part of a peace accord, does not escape this dynamic.
A peace negotiation entails a situation in which conicting parties face dilem-
matic choices. While each party would probably start the negotiation by pur-
suing its own interests, reaching a nal agreement is dependent on the actions
of all parties to the negotiation. For this to happen, parties should consider
themselves agreeing on a ‘win-win solution’, which is not only acceptable to
them, but with which they consider themselves better of. Reaching this
common ground implies, however, yielding on issues that might have been
considered as essential by either of the parties. Examples include political
Alpaslan Ozerdem and SungYong Lee, International Peacebuilding: An Introduction (Rout-
ledge, London, 2016).
Ibid; Brian Martin, ‘The Selective Usefulness of Game Theory’, 8 Social Studies of Science
(1978), p. 89; Philip Stran, Game Theory and Strategy (New Mathematical Library, Wash-
ington, , 2002).
Joseph Eaton and David Eaton, Negotiation Strategies in International Disputes, Inter-
national Project on Violence and Conicts Caused by Environmental Degradation and
Peaceful Conict Resolution, <www.css.ethz.ch/content/dam/ethz/special-interest/gess/
cis/center-for-securities-studies/pdfs/Environmental_Crisis_1995.pdf>, accessed 31 Octo-
ber 2018.
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power-sharing, as in the case of South Africa or issues related to sovereignty,
as it happened in Northern Ireland.
In this regard the issue of accountability for past criminality, in which ne-
gotiators might have been directly or indirectly involved, is often fundamental.
The parties will certainly have some interest in either achieving some degree
of impunity (lack of punishment) or accountability (traditional criminal jus-
tice and severe sanctions). For instance, an insurgent group negotiating with
a state will probably seek full impunity and amnesties. From their viewpoint,
negotiating would arguably be useless if it leads to the same outcome as if they
had been defeated. On the other hand, the government, with the mandate
and formal authority to punish, might demand harsh sanctions, as ordinarily
established in criminal law frameworks, in particular if it believes that its agents
will not be, for whatever reason, included in the accountability mechanism. In
fact, harsher punishment may enhance the formal authority and legitimacy of
the government. Furthermore, in the context of peace negotiations, punish-
ment as one piece of the negotiated puzzle is intimately interrelated to various
(non-punitive) considerations being on the negotiating table.
Accordingly, decisions on punishment, and the extent to which parties to
the negotiation are willing to agree or yield on those matters, are contingent
on, at least, two sets of factors. First, there are considerations intimately related
to the accountability issues and crimes being punished, such as (i) other tran-
sitional justice issues under negotiation (beyond the punishment of perpetra-
tors); (ii) interests of victims of crimes and other justice stakeholders (such as
potential perpetrators or victims’ focused non-governmental organisations);
and (iii) international obligations relating to accountability for international
crimes and gross human rights violations, by which States are often bound.
The second set of considerations relates to broader issues that are often con-
sidered important in shaping the outcomes of peace negotiations in general.
Consequently, these factors also inuence punishment as one of the negoti-
ated items. These include (iv) control over (material and nonmaterial) sources
of power (leverage) of each negotiating party; (v) other competing negotiation
Mark A. Young, ‘Playing Red and Playing Blue. The 1990–94 Negotiation Miracle in South
Africa’, 12(2) International Negotiation (2007) 295–310.
Steven Brams and Jefrey M. Togman, ‘Agreement through Threats: The Northern Ireland
Case’, in Fioravante Patrone, Ignacio Garcia Jurado and Stef Tijs (eds.), Game Practice,
Contributions from Applied Game Theory (Springer, New York, 2000) pp. 35–52.
Michael Scharf, ‘The Amnesty Exception to the Jurisdiction of the International Criminal
Court’, 32(3) Cornell International Law Journal (1999) 508.
Keally McBride, Punishment and Political Order (University of Michigan Press, Ann Arbor,
2007) p. 20.
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interests, meaning broader issues under negotiations not directly related to
issues of transitional justice; (vi) public opinion and public support of the
agreement; and nally (vii) the broader socio-cultural and historical context,
in which the peace agreement is negotiated. Each of these contextual factors
is briey explained below.
5.1 Other Transitional Justice Issues under Negotiation
Punishment is often negotiated as part of a transitional justice ‘package’ and
in tandem with other mechanisms adopted to address mass atrocity crimes,
such as diferent ways of truth nding, accountability measures, reparations,
guarantees of non-repetition, such as institutional reforms, and measures to
promote reconciliation. In such cases, the modality, type and severity of the
negotiated sanctions will also depend on how criminal accountability com-
petes with, or relates to other transitional justice interests pursued by the State,
by the community or the victims. It may be the case that popular demands,
which the State is amenable to, are more focused on truth than punishment and
this may shift the balance more towards the creation of a truth commission
with wider powers instead of a harsh punitive scheme. In this sense, the sever-
ity of punishment might be conditional upon other elements of the judicial
and non-judicial transitional justice arrangements and how diferent transi-
tional justice needs and demands are formulated and negotiated in its totality.
5.2 Victims’ and Other Justice Stakeholders’ Needs and Demands
The pressure of external groups that might be directly or indirectly afected by
the nal agreement are arguably also instrumental to parties’ decision on the
extent to which they are willing to yield on prosecutions and sanctions. For
instance, victims of conict-related crimes or (national or international) civil
society organisations would probably pressure for accountability or harsher
sanctions. They might have a strong position within society, and thus in public
opinion. Additional third parties’ interest may include those, who provided
nancial means or political support for past violence and might be prosecuted
as consequence of the accord. These third parties would probably pressure
for lack of criminal accountability. The extent to which they succeed might
Stephan Parmentier, ‘Global Justice in the Aftermath of Mass Violence. The Role of the
International Criminal Court in Dealing with Political Crimes’, 41(1–2) International An-
nals of Criminology (2003) 203–224.
Cf. Kathryn Sikkink, The Justice Cascade. How Human Rights Prosecutions Are Changing
World Politics (W.W. Norton & Company, New York, 2011).
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depend on their position within the nancial or political system of the country
and the political leverage they possess.
5.3 International Legal Framework
The extent to which interests regarding accountability and punishment during
a peace negotiation are contradictory or overlapping depends on the motiva-
tions and aims of each negotiating party. Nevertheless, even if all parties pur-
sue impunity, there is a factor that makes it costly for them to simply agree on
avoiding prosecutions and sanctions. Various international legal instruments
set forth the obligation for States to prosecute and punish grave human rights
violations and international crimes. A breach of this obligation may cause,
for instance, the judicial intervention of an international tribunal, such as the
International Criminal Court. Nevertheless, these international legal obliga-
tions are usually not specic when it comes to penal distribution at the domes-
tic level. Arguably, existing international law provides States with leeway with
regards to how to comply with the duty to punish. This margin of apprecia-
tion allows the parties to achieve a punitive ‘win-win solution’, which brings
together their (contradictory) interests while trying to comply with interna-
tional obligations. In consequence, if an agreement is reached, the means of
accountability and the severity and modalities of punishment will be heavily
inuenced by the political negotiation, while being conditioned by the (inter-
national) legal framework. In practice, this cooperative compromise can be
materialised through ‘creative’ modalities of punishment that might not be ex
ante regarded in breach of international legal standards.
5.4 Control over (Material and Nonmaterial) Sources of Power –
Leverage of Each Negotiating Party
Parties to a peace negotiation might have control over diferent (material and
nonmaterial) sources of power, which provide them with diferent levels of
leverage regarding items on the negotiating table, including accountability
and punishment for past crimes. Some of these power sources include, for in-
stance, control of armed forces, territorial control, control of natural resources
Priscilla Hayner, ‘Negotiating Justice – The Challenge of Addressing Past Human Rights
Violations’, in John Darby and Roger McGinty (eds.), Contemporary Peacemaking: Conlict.
Peace Processes and Post War Reconstruction, second edition (Palgrave MacMillan, New
York, 2008) pp. 328–338.
Claudia Josi, ‘Accountability in the Colombian Peace Agreement: Are the Proposed Sanc-
tions Contrary to Colombia’s International Obligations’, 46 Southwestern Law Review
(2017) 401–422.
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or wealth (state assets, commodity exports, predation on local population,
theft of humanitarian aid, etc.), popular support or fear, control of media, en-
dorsement by spiritual leaders, external diplomatic or political support. Par-
ties to the negotiation might also be well informed or misinformed about their
relative strength. In any case, their balance of power, and the probability of a
military victory or defeat in the absence of negotiations, may move parties to
accept or reject specic forms of punishment. For instance, a weak military po-
sition could make a rebel group willing to accept moderately severe sanctions
for its members, such as reduced prison terms. Conversely, a strong military
position could ofer a necessary leverage to eliminate imprisonment. Similarly,
a military weak state could make the government willing to approve general
amnesties for rebels, which would have not been considered in the likelihood
of a military victory.
5.5 Other Competing Negotiation Interests
A peace negotiation generally concerns diferent issues which have to be con-
sidered as part of an overall bargaining process, even if negotiated through-
out diferent stages. The manipulation of multiple issues becomes most
important near the end of a peace negotiation when the parties are searching
for ways to bridge the remaining gaps. At this stage additional concessions
might be made in order to reach a complete peace ‘package’. Examples of ne-
gotiation items, diferent from criminal accountability and other transitional
justice issues, might include political participation, territorial control, public
policies on legal and illegal economies, land redistribution and even narratives
on the causes of and factors fuelling violence. The negotiating parties might
attach diferent importance to other items under negotiation, thereby afect-
ing their bargaining positions. For instance, adversaries might have varying
ideas and multiple disagreements about ‘what the conict is about’ and con-
sequently ‘diferent prescriptions for its resolution’. According to Bell, any
efort to resolve the conict during peace negotiations involves an attempt to
Chester A. Crocker, Fen Osler Hampson, and Pamela Aall (eds.), Taming Intractable Con-
licts: Mediation in the Hardest Cases (United States Institute of Peace, Washington, ,
2004) pp. 94–95; David R. Smock and Amy L. Smith, Managing a Mediation Process, Peace-
maker’s Toolkit (United States Institute of Peace, Washington, , 2008).
Paul R. Pillar, Negotiating Peace. War Termination as a Bargaining Process (Princeton Uni-
versity Press, Guildford, 1983).
Christine Bell, ‘Negotiating Human Rights’, in Darby and McGinty (eds.), supra note 128,
p. 213.
Ibid.
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‘meta-bargain’, i.e. to bargain not only about the concrete outcomes but also
over the nature of the conict, which necessarily involves ways how to resolve
it. In this sense, the characterisation of past violence, its purposes and justi-
cations, and how to deal with it in the aftermath of the conict are part and
parcel of this fundamental meta-bargain. This point might be crucial in cases
in which the violence was for example considered instrumental by rebels to
achieve other objectives such as greater political representation, social jus-
tice or territorial control. Punishment may then be counterbalanced by other
concessions related to these other, broader interests negotiated as part of the
comprehensive accord. In practice, a rebel group may agree to limited prison
terms if in exchange it receives other benets such as political participation or
long-term social benets during the reintegration process. Furthermore, a gov-
ernment may be agreeable to less severe punitive schemes, if the rebel group
relinquishes or diminishes its expectations on political participation, or ac-
cepts other conditions set out by the government, such as delivering informa-
tion over illicit trade or organised crime.
5.6 Public Opinion and Public Support
Salience and relevance of public opinion regarding the conict resolution and
outcomes of a peace agreement should also not be disregarded. In transitional
contexts, punishment for past mass atrocity crimes and justice related issues
are often subject to heated, public, emotionally and politically charged, con-
tested discussions. Depending on the sensitivity of negotiating parties to public
opinion and the structure of such public opinion, the negotiating parties
might favour a punishment design that will make them politically better of
in the future. While compromises in a peace agreement might be a matter of
national controversy, public opinion might favour either prosecutions and
sanctions that condemn past violence, or conversely (conditional) amnesties
and lighter sanctions that enable a ceasere as soon as possible. A party to the
negotiations might opt for the option favouring the strongest public opinion.
Such a position would promise future political support and possibly public
credibility.
For a similar argument in case of inter-state peace negotiations cf. Ben D. Mor, ‘Peace Ini-
tiatives and Public Opinion: The Domestic Context of Conict Resolution’, 34(2) Journal
of Peace Research (1997) 197–215; Peter F. Trumbore, ‘Public Opinion as a Domestic Con-
straint in International Negotiations: Two-Level Games in the Anglo-Irish Peace Process’,
42(3) International Studies Quarterly (1998) 545–565.
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5.7 Broader Socio-Cultural and Historical Context
Peace negotiations are, essentially, the management of human relations involv-
ing individuals, groups or nations. Normally, societies are structured around
fundamental values and norms developed through history and culture.
These largely depend on ‘the culture and its normative code, and beliefs that
characterise national, ethnic or other groups and orient their behavior’.
Since peace negotiations look to not only resolve a conict but to do so in a
mutually satisfactory manner, these fundamental values – such as justice or
general understandings of what is right and wrong – are also addressed and
discussed. These values are in practice more relative than universal and thus
again context-dependent. For instance, in practice, ideas on how ‘justice’ can
be achieved amidst a peace negotiation might drastically vary if parties belong
to a tribal community or to a ‘Western-like’ highly institutionalised society. In
the rst scenario, ideas on what is justice and how to achieve it could for exam-
ple include traditional dispute resolution mechanisms based on indigenous
traditions and practices. In contrast, in the second case, proposals on how to
achieve justice would most probably encompass solutions based on Western
liberal ideas of individual criminal accountability and retributive punishment
of individuals, for example.
This categorisation of possible contextual factors ofers a rst, explorative
list of considerations relevant for understanding punishment in negotiated
transitions. Arguably these considerations are not exhaustive and in diferent
cases additional factors might appear. It is also important to realise that the
diferent categories are at times overlapping (such as the way how transitional
justice issues are resolved relates to the broader socio-cultural and historical
context), and consequently are in practice mutually dependent, interact and
inuence each other. None of them, on their own, can be seen as determina-
tive of the outcome and the particular modality of punishment in transition
designed within peace negotiations. The relative importance of each, again,
depends on the particular circumstances of each case. These theoretical con-
siderations can ofer a basic checklist for future sociological analysis of how
Francis M. Deng, The Sudd Institute, Negotiations in a Cultural Context. The Dialogue Brief,
<www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwj01b7
nj7PeAhUE3qQKHXz8AbcQFjAAegQIABAC&url=https%3A%2F%2Fwww.africaportal.
org%2Fdocuments%2F17850%2F59bfc628d4e0b_NegotiationsInACulturalContext_Sum-
mary.pdf&usg=AOvVaw17pQKOD1RF1rPi_vM_PyEo>, accessed 1 November 2018, p. 2.
Ibid., p. 3.
Ibid.
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penal policies can be shaped by wider historical, social and political contexts,
the particular dynamics of the crimes and the transitional moment of peace
negotiations. It should, however, also be emphasised that each case of conict
and its resolution via peace negotiations is unique, and reects unique conict
histories, contemporary circumstances and diferent ideas about the future of
the transitioning society.
6 Conclusion
Societies facing political transitions deal with past political, collective and
widespread criminality, which commonly amount to international crimes and
grave human rights violations. This, in and of itself, is not an easy task. In ad-
dition, in such transitional contexts, processes of creating or consolidating po-
litical power structures run parallel. These complex processes, while probably
being orchestrated and ran by power elites, involve society at large. Values such
as peace, democracy, reconciliation or the rule of law are not only being pub-
licly discussed and contested, but also materialise in public policies, including
punishment. In transitional settings, responding to atrocity crimes through
criminal punishment is a complex matter. It takes part in a chaotic reality su-
perseding the ordinary challenges societies are used to dealing with in ‘normal’
times. The decision on whether to forgive and forget or to severely punish past
crimes is dependent on several factors, such as the dynamics of the violence or
the way by which it ends, and society is transformed. Punishment in transition
operates in such volatile contexts.
The case of Colombia is not only the most recent, but also one of the most
relevant examples of how punishment is moulded and shaped to accommo-
date complex realities and the societal necessities of a negotiated political
transition. This article ofered a detailed description of Colombian punish-
ment in transition. In Colombia, punishment is part of a ‘win-win solution’
reached by enemies at war, which, in turn, was integrated and intimately re-
lated to the peace bargaining process pursuing broader goals of social trans-
formation. Colombian punishment in transition is a new development, which
raises a myriad of ethical, legal, political and pragmatic questions. Drawing on
the Colombian experience, this article theorised on characteristics of punish-
ment in negotiated transitions, when designed and implemented in contexts
of peace agreements.
Over the past 35 years, armed conicts have predominantly ended with
peace negotiations. In 2016, according to the Uppsala Conict Data Program,
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there were still, at least, 49 active armed confrontations ongoing in the world.
Only in 2016, fatalities worldwide, directly linked to armed conicts, amounted
to 102,000. Sixty-one out of seventy-seven veried peace agreements con-
cluded between 1980 and 2006 contained either a general reference to prin-
ciples of human rights or a specic justice mechanism to address past mass
atrocity crimes. Questions of conict resolution and criminal accountability
for past atrocities are intrinsically interrelated, and in the current era of ac-
countability for mass human rights violations and the International Criminal
Court, the dilemma of punishment in peace negotiations will certainly remain
relevant across diferent countries and societies. The list of contextual factors
proposed in this article to understand and evaluate the design, type and se-
verity of punishment negotiated to deal with mass atrocity is derived drawing
heavily on the Colombian case, while taking into account broader literature re-
garding peace negotiations and their outcomes. There is hardly any literature,
theoretical or empirical, regarding the design and evaluation of punishment in
negotiated transitions. Future (comparative) research should further nuance,
develop and test the proposed contextual factors, looking at other instances of
peace negotiations and accountability measures.
Margareta Sollenberg and Eric Melander, ‘Armed Conicts and Peace Processes, Pat-
terns of Organized Violence, 2007–2016’, in Yearbook 2017 (Oxford University Press,
Oxford, 2017).
Kendra Dupuy, Scott Gates, Havard Mokleiv Nygard, Ida Rudolfsen, Siri Aas Rustad,
Hayard Strand and Henrik Urdal, Trends in Armed Conlict, 1946–2016 (, Oslo, 2017)
p. 1.
Leslie Vinjamuri L and Aaron P. Boesenecker, Accountability and Peace Agreements. Map-
ping Trends from 1980 to 2006, <https://www.les.ethz.ch/isn/39727/0907_Accountability-
report.pdf>, accessed 1 November 2018, p. 9.
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