Legitimidad de la justicia transicional en ColombiaUna reformulación normativa desde los derechos humanos

Abstract

In 2016, the Colombian Government and the Revolutionary Armed Forces of Colombia [FARC] agreed on the end of the armed conflict that they held for more than half a century. In exchange for the demobilization, disarmament and reintegration of this guerrilla members, some financial, political and judicial benefits were granted. In addition, the creation of different measures to clarify the truth, obtain justice, repair the victims and prevent the repetition of wrongdoing, was agreed as well. With the Agreement, the negotiating government renounced the use of force against the FARC and decided to advance in peace-building through the implementation of Transitional Justice. However, this transitional system has been strongly criticized, especially its judicial component: The Special Jurisdiction for Peace, which was created to judge and punish, with penalties that may be different from imprisonment, those who committed crimes during the armed conflict. Part of the Colombian society as well as the current government hold the belief that the benefits granted to the guerrilla members are not justified and, therefore, that the Agreement was a political maneuver to grant impunity to the FARC. The aim of this research is to answer the philosophical-political question about the legitimacy of the Special Jurisdiction for Peace as part of the Transitional Justice System. Five legitimacy criteria are presented and used to analyze the case of Colombian Transitional Justice. As a result, it is suggested that the Special Jurisdiction for Peace and, by extension, the whole Transitional Justice System, can be regarded as legitimate; even in the eyes of the critics. Drawing upon different theories of political and moral legitimacy, it is argued that the legitimacy of the implemented system derives from the following: first, the deliberative process carried out in the formation of the Agreement; second, the rationality of the content of the agreement -regarding justice- as a solution to the bargaining process staged by the parties; third, the social support that this agreement obtained in the most affected areas by the conflict and its endorsement made by the representative democracy [social legitimacy and formal-legal legitimacy]; fourth, the utility of the Agreement and the sanctioning treatment adopted, as measured by its objective consequences and its expected and foreseeable consequences and, fifth, the justification of the government's decision to renounce the use of force since, at least part of the violence produced, was not morally justified according to the analysis laid out in this dissertation. These legitimacy criteria allow the conclusion that the former Colombian government’s decision of ending the conflict with the FARC by negotiation was reasonably founded and, thus, its choice of applying a system of Transitional Justice to contribute to this aim and pursuing the construction of lasting peace should be seen as legitimate. This conclusion is defended even in the face of accusations that it has entailed renouncing the use of force and making concessions in terms of retributive criminal justice