A Reason for Hope: The Pursuit of Restorative Justice in Colombia (with Judge Julieta Lemaitre)
In 2016, a peace agreement was negotiated between the Colombian Government and one guerrilla movement known as the Revolutionary Armed Forces of Colombia, or the FARC. But the peace deal was rejected by a narrow margin in a referendum in 2016. A revised peace deal was eventually ratified by the Congress of Colombia. The peace agreement provides for the Special Jurisdiction for Peace, a tribunal created in 2018 to implement the transitional justice component of the peace agreement. In this episode, we talk with Judge Lemaitre, who currently the Investigating Judge for the jurisdiction’s first macro case, about the future of restorative justice in Colombia.
Interview with: Julieta Lemaitre (Special Jurisdiction for Peace, Colombia)
Host: Natasha Holcroft-Emmess
Producer: Natasha Holcroft-Emmess
Executive Producer: Kira Allmann
Music: Rosemary Allmann
The Special Jurisdiction for Peace and the Pursuit of Restorative Justice (Julieta Lemaitre)
Natasha Holcroft-Emmess (0:11): Welcome to RightsUp RightNow, a podcast from the Oxford Human Rights Hub. I’m Natasha Holcroft-Emmess. Today I’m speaking with Julieta Lemaitre, a judge at the Justice Chambers of the Colombian Special Jurisdiction for Peace.
The Colombian conflict began in the 1960s and has seen decades of clashes between the Government of Colombia, paramilitary and guerrilla groups. In 2016, a peace agreement was negotiated between the Government and one guerrilla movement known as the Revolutionary Armed Forces of Colombia, or the FARC as they are known by acronym. But the peace deal was rejected by a narrow margin in a referendum in 2016. A revised peace deal was eventually ratified by the Congress of Colombia. The peace agreement provides for the Special Jurisdiction for Peace, a tribunal created in 2018 to implement the transitional justice component of the peace agreement. Judge Lemaitre is currently the Investigating Judge for the jurisdiction’s first macro case, charges related to kidnapping, brought against former guerrilla group leaders. Judge Lemaitre, thank you for joining us today.
Julieta Lemaitre (1:44): Thank you, Natasha, for having me.
Natasha Holcroft-Emmess (1:47): I’d like to ask you first about the human rights situation during the conflict and post-conflict. Could you please give us an idea what kind of human rights issues the Colombian conflict raised?
Julieta Lemaitre (1:59): It’s an extended conflict if you count from the very origin of the FARC, the F.A.R.C., but actually the peak fighting, and the peak human rights violations, were in the ‘90s and the early 2000s. After our 1991 Constitution, which brought into the legal system a lot of guerrillas that had started during the Cold War under the aegis of the Communist-versus-Liberal wars— some guerrillas did not come into the system.
The main one, the largest one, was the FARC, which was a communist guerrilla that had been started by peasants in the ‘60s. But in the early ‘90s, it started gathering strength, military strength and some political strength, some territorial control. It started financing itself through kidnappings of civilians and also through taxes, or extortion of different economies, but most notably the cocaine economy. So, through that, especially, it had enormous funds, and it expanded into areas where it hadn’t been historically. The human rights violations that it committed were kidnapping of civilians, the use of military weapons against civilian targets, and prohibited weapons — there’s a lot of landmines — and the murder of protected persons in international humanitarian law.
The Colombian Army was weakened through the ‘80s. It was a rather unprofessional army but in the ‘90s, when— especially the late ‘90s, with enormous support from the US Government, and also through taxes, the Army began a professionalisation process. It expanded, it started— it needs to be— at least half of it was draft… but it began to be professional soldiers. It committed the abuses that Army Generals committed during the Cold War, through what Latin Americans called the Dirty War Tactics, identifying civilian supporters of the guerrilla, or people who are Leftist, journalists, or professors or students, and torturing and disappearing, but mostly, the most notable human rights violation was that as the Army grew, and it had this new staff or members who were now professional soldiers, it started handing out rewards for a body count, and this eventually led into a large number of extrajudicial killings. So these are the most notable cases of gross human rights violations by both parties during the war.
Natasha Holcroft-Emmess (5:19): A very challenging human rights situation in Colombia during the conflict.
Julieta Lemaitre (5:24): Especially because of the extension in time. So most conflicts last four or five years, six years, but this is, if you count from the very beginning of the FARC, it’s a 50, or over 50-year conflict. But even if you just count from the moment where both the Colombian Army and the FARC got stronger, and committed most violations, that’s a 20-year period. So it’s still a lot of time.
Natasha Holcroft-Emmess (5:54): And then as the conflict was able to move towards agreeing a peace deal, would you be able to describe a national mood and how things changed when the peace agreement was reached in 2016?
Julieta Lemaitre (6:09): So, there w[ere] a lot of factors and you could describe it as a perfect storm around the loss of the referendum in late 2016. On the one hand, because there had been previous attempt in the late ‘90s —1999 to 2001 — to negotiate a peace deal with the FARC, and widely it was perceived in Colombia that the FARC used this time, when there were supposedly negotiating and when the then-Government cleared an area for them to become stronger, and it used a clear area to keep kidnap[ping] people, hostages, to exchange for ransom… So, people, like the general population, had a deep mistrust of the FARC after that, and as it happened, when the Santos Government began negotiating again within them, the line of the Government was to keep it in secret. So there was a lot of secrecy around the negotiations. And even when it came out that negotiations were happening, they were in Cuba, and they were kept— the public didn’t really have a sense of what was being negotiating, and in the long run, that didn’t work in its favour.
On the other hand, previous President Uribe had formed his own party, it’s a Right-ist party— Uribe was instrumental, he had enormous leadership in the growth and professionalisation of the Colombian Army that led not to the defeat of the FARC, but certainly it diminished the FARC, and took away a lot of its strongholds, and recovered areas for the Colombian State. But he felt strongly that the Santos Government that followed the Uribe Government didn’t respect Uribe’s legacy, and [he] did not agree on the terms that the new Government had come to with the FARC. So, there was that and he was a very vocal critic, as were the people in this new party, the Centro Democrático.
Then there was something else adding to the perfect storm, which was this movement, or a counter movement, against sexual and reproductive rights, led in Latin America mostly by Evangelical churches more than by the Catholic Church, although with some support by some priests. And somehow, in this new era of fake news, they understood the peace agreement to enshrine gender equality, but it was presented in a way that was very offensive to ordinary folk; so, there was a campaign that said that the peace agreement would teach children how to be gay, or force boys to be gay. It was very— there’s a lot of misinformation around the sexual part of it. Then there was also… the FARC leaders did not really connect with public opinion and seem to be aloof and unrepentant. So all these things came into play, but even so, only 37% of Colombians who could vote voted on the referendum.
And to literally add to the perfect storm, there was an actual storm, there was a hurricane in the Caribbean and the northern part of Colombia, which is more liberal. It was difficult to get into the polling booths because of the rain and the flooding. So it was like quite literally, at least in the north, the perfect storm, and only 37% of the community who could vote got to the polling booths, and the “no” vote won, but by a narrow margin of 0.5%, but it won.
Natasha Holcroft-Emmess (10:30): And that led to Congress eventually stepping in.
Julieta Lemaitre (10:33): It was a re-negotiation of some of the points that the “no” campaign had pointed to. At the end, the people in the “no” campaign did not support that renegotiated agreement, although many of the points were changed, but not the main points that they insisted on, which is that FARC leaders go to jail, and that they do not participate in politics, actively, the leaders themselves, not the party. So those points remain[ed] in the agreement, and the “no” camp did not support the new negotiated agreement, but Congress did and, more importantly, the Constitutional Court supported the amendments, they enshrined the agreement in the Colombian Constitution, including the creation of the Special Jurisdiction for Peace.
Natasha Holcroft-Emmess (11:21): It’s really interesting to me that a rights issue played such a crucial role in this debate; a human rights issue, as you mentioned, about gender equality. I just wonder if it’s— when you have these kind of big political events, if human rights issues are seen as quite polarising, when a country is trying to decide on how it should move out from conflict, do you think that’s…?
Julieta Lemaitre (11:44): Well it depends if there is a lot of social mobilisation around certain rights or around certain issues. Interestingly, the right to peace is enshrined in the Colombian Constitution —it’s Article 22 of the Constitution — and right after the “no” vote, there were huge marches, mostly students in the cities, and they mobilised around Article 22, the right to peace. So it depends if there’s… whether or not there’s mobilisation around this.
Natasha Holcroft-Emmess (12:16): Let’s move on then to talk about the work of the Special Jurisdiction for Peace. What are the aims of the Special Jurisdiction and how will it achieve those aims?
Julieta Lemaitre (12:25): So the aims are really ambitious, and if you look at… we have this planning declaration that actually most entities do… the mission and the vision. The mission and the vision say that the Special Jurisdiction for Peace aims at helping make peace a reality in Colombia. The way that it aims to do this, and that’s enshrined in the Constitution, is by trying war criminals and bringing to light what happened. The design of the jurisdiction is really complex, basically, because it’s learned from previous experiences, both around the world and in Colombia; we already had a previous transitional justice process where we tried the paramilitary armies. So there’s a lot of learning and also, because we’re globally connected, there’s learning from other experiences; there’s a large literature evaluating transitional justice, mostly critiquing it… So the design itself is really complex, mostly because the designers tried to respond to, and to pre-empt, possible critiques.
The result is just incredibly complex. It’s a jurisdiction, meaning it’s a series of court, but it’s not focused on trials; it’s focused on having war criminals provide truth about the crimes, about what happened. There are three pre-trial chambers, the Justice Chambers— I’m in one of them… There’s an Amnesty Pre-Trial Chamber, which provides, basically, amnesty for those crimes, mostly rebellion and crimes associated with rebellion; political crimes which in the Colombian tradition have received amnesty for the last 200 years. This is like bearing arms against a State and minor crimes like theft, if the theft is related to the financing of the revolution… So there’s the Amnesty Chamber.
Then, there’s the Truth Recognition Chamber, which like I said, it’s a pre-trial chamber, and the judges in it, we are Investigative Judges or Examining Magistrates (I think it’s also the term in English). This is from the civil law tradition, so it’s not as known in the common law, it doesn’t exist in the common law, and generally common law schools don’t teach it. But in the civil law tradition, criminal judges used to investigate the crimes before they went to trial. Over time, their powers have been limited in most countries, but they were brought [in] again for this Chamber. Basically what we do is, we identify those cases that are most representative, we prioritise, and we investigate them, and we call on the people who are responsible for them, those “most responsible” is what the law would say if you translated it. But that doesn’t necessarily mean just the commanders; it could be a perpetrator who was responsible for a torture camp, for example, even though he wouldn’t be high up in the hierarchy. So it’s not a hierarchical consideration, but rather, in terms of making— a decision-making consideration. We call them to accept, to recognise what they did, and to provide truth. If they do, and we’re satisfied that they did as to the best of their possibilities, then there’s no trial; they’re channelled directly for sentencing. The sentencing is meant to be reparative. Victims are consulted on the sentencing; it can’t be jail, but it can be other forms of restriction of freedom, and it includes works destined for reparations. So the most obvious example is demining; they would get training, and dedicate a maximum of eight years to this task of demining those places where there’s actually still a lot of mines. But if they don’t accept the conclusions of the Chamber, then the case gets directed towards a prosecutor who decides if there’s enough evidence to go to trial or not. And then there could be a regular trial, with jail sentences that are still reduced; so, it’s maximum 20 years in jail.
Natasha Holcroft-Emmess (17:40): I just wonder if you think there might be any tensions between thinking about human rights considerations and the model of transitional justice, or the approach to transitional justice, and whether sometimes they’ll pull in different directions, and how post-conflict procedures should try to mediate those tensions.
Julieta Lemaitre (17:59): In terms of human rights, as the struggle against impunity, there’s the usual trade-off between jail as the form of punishment and truth. On the other hand, jail is pretty much a Western understanding of what punishment looks like. We’re also looking at traditional indigenous understandings of punishment, and as the need to restore equilibrium in a community, and different ways of restoring equilibrium. This includes preparing former combatants and victims to live together again, and participate in these forms of preparation that do signify atonement, and atonement is important, but not necessarily being locked away as the ideal form of atonement. So we are— although there’s definitely a thirst, in part of the population, for retributive justice, “an eye for an eye”, there’s also the cultural instruments, or baggage, to imagine— and that’s part of our task, to imagine other forms of punishment or of atonement, really, that would satisfy victims. Victims of specific crimes have an important role to play in the jurisdiction. There’re plenty of procedural instances where their voices are heard, where they can ask for evidence, provide evidence, comment on what the perpetrators have said. They can hand in reports. They get consulted on the penalties. So there’s a lot of new institutional designs that are meant to respond to the critiques, but they still have to work, we haven’t seen them in action, the court hasn’t been— it started operations in March 2018, so it’s pretty recent. We’ll see in 10 years whether or not it’s worked…
Natasha Holcroft-Emmess (20:29): I think what you’ve been describing goes really to the heart of the Special Jurisdiction’s restorative justice model. Could you speak a little bit about what we mean when we talk about “restorative justice” and why the tribunal is use focusing so much more on restorative justice and retributive justice?
Julieta Lemaitre (20:48): So we have that mandate, but there’s no precise definition of “restorative justice” in the law. When you look at efforts around the world, and even in Colombia, they’re really focused on crimes that are not as grave, and on very specific crimes, like theft or rape, or— I don’t think that there’s like— for huge patterns of human rights violations, experiences in restorative justice unless you can take the “gacaca” courts… But even so, in most experiences of restorative justice, perpetrators remain in jail, and restorative justice does not replace the punishment. So we have to be creative on what does it mean to generate “satisfaction”, because this is also about a transition to reconciliation. What forms of justice would be restorative in the sense that it would allow us, as a society, to face new problems, I guess, instead of remaining tangled up in the older problems or in things of the past? So that’s a huge challenge, and we’re taking it step by step. Part of the initial step, for example, is that we’ve included in our Investigation Unit, not just the staples of criminal investigation of international crime — stuff like, How did the military organisation work? What orders? How did orders, you know, trickle down the hierarchy? or What happened during the war? — but we’ve also included, as part of our necessary criminal investigation, investigation on the harms, and on victim perceptions of the harms, and how to understand what was the harm in order to lay a solid foundation for reparations. And what we can— If you understand the harm, then you might understand the type of measures that could constitute reparations. We also ask victims and perpetrators what they understand would work as restorative of the past, and there’s interesting expressions. I find it particularly compelling that the widow of this extraordinary man the FARC kidnapped in 2001, called Guillermo Gaviria— He was the Governor of the Antioquia Province, he was a young man in his early 40s, and he was really committed to the use of non-violence, a great admirer of Martin Luther King and Gandhi, and connected with a global non-violence movement. They kidnapped him and they killed him, in a rescue attempt by the Colombian Army. But his widow— and it’s really, it’s a heartbreaking love story… His widow wants the perpetrators to receive training in non-violence and to become non-violence trainers themselves, and to keep his memory alive. She thinks that will be… restored.
Natasha Holcroft-Emmess (24:26): So great to have those perspectives brought into the consideration. Another court-like body that has focused on restorative justice and addressing human rights violations was the Truth and Reconciliation Commission, or the TRC, in South Africa, focusing on addressing human rights violations because of apartheid. Was the TRC model taken into account when the Special Jurisdiction was set up or any lessons learned from this approach?
Julieta Lemaitre (24:58): The designers actually scanned the different models, and of course, the South Africa model is a reference, part of our design response to the shortcomings of the many different models. What’s yet to be seen is whether the new design actually addresses the shortcomings. So in terms of the South African Commission, we learned about the power of public hearings to shape narratives, and we also learned about the care that is needed before creating, setting-up a stage where there is a face-off, or a direct confrontation, between perpetrators and victims. We learned, as we have from most transitional justice process, that these processes are divisive and that they don’t necessarily, as they are happening, create, “reconciliation”, but it often seems this is the opposite. We learn about the power of victims’ voices, and the critique that’s been, probably, a consensus, or at least pretty general about the TRC, is that it didn’t have— there was no actual punishment of any sort. So the designers separated our own. We have a Truth Commission from the judicial proceedings, in parallel; so we have both the Truth Commission and the judicial proceedings, which is the Special Jurisdiction, and it’s specifically concerned with criminal responsibility, whereas the Truth Commission wants to talk more about large scale processes.
Natasha Holcroft-Emmess (26:53): And finally, turning to think about the future. What challenges do you see for the peace process and the realisation of human rights in Colombia, and how does the Special Jurisdiction— how’s it going to try to overcome those?
Julieta Lemaitre (27:07): So I think there are reasons for hope, and the main one, for me at least, is that there is an emerging consensus that spans both the far Right and the far Left, and everybody in between, that the Colombian State needs to be present in all of its territory (critics have said that Colombia is a territory without a State, in some parts) and that it needs to be present not just as a military force or police, but that it needs to be present to social services, as roads, as public schools, as health services, as markets, legal markets — you know, you have to be able to buy, I don’t know, a band-aid, basically everywhere in the territory to be able to do that. So that’s the general consensus. And it’s not— it hasn’t been an easy consensus to achieve, but I think that it’s now pretty much established, and the task is how to do that, and I think that we’re all committed to finding ways of doing that. It has to be the State that reaches throughout the Colombian territory; it needs to be a State that is legitimate for the people who live there, and that protects traditional ways of life, but that also brings the humanities of modernity and that protects the environment in a country that has enormous natural resources that are attractive for both legal and illegal enterprises. So, the Special Jurisdiction is a very small part of the construction of a legitimate State, one that is able to bring the satisfaction to people in, especially in the distant territories. This is what the former Peace Commissioner called the “territorial peace”, what it would entail to bring peace, because the war in Colombia wasn’t really centred in the cities, and there are many mid-level cities in Colombia, it’s not— there’s Bogotá, which is the capital, but there’s actually an important number of mid-level cities— It was mostly carried out and mostly harmed persons living in internal frontiers. So how to bring the legitimate State, a social state of law, which is what our Constitution says, and the Special Jurisdiction is a small part of that effort, it should be able to help close the wounds of the past and heal them. But that’s just one part of a much larger process.
Natasha Holcroft-Emmess (30:10): Judge Lemaitre, thank you so much for your insight into this. It’s really fascinating and it’s great to hear about the work of the Special Jurisdictions.
Julieta Lemaitre (30:17): Thank you for having me, Natasha, it’s been a pleasure.
Natasha Holcroft-Emmess (30:20): Thank you very much.
Kira Allman (30:31): RightsUp is brought to you by the Oxford Human Rights Hub. Our Executive Producer is Kira Allmann. This episode was produced, edited and hosted by Natasha Holcroft-Emmess. Music for this series is by Rosemary Allmann. And Sarah Dobbie does our show notes. Subscribe to this podcast wherever you like to listen to your favourite podcasts.