through which radical transformations of a social and political order are made; either by the passage of a dictatorial regime to a democratic one, or by the end of an internal armed conflict and the achievement of peace. Transitional justice processes encounter important dilemmas, all originating in the complex need to balance the conflicting objectives of justice and peace. (Uprimny, 2006, p. 13).
In his report “The rule of law and transitional justice in societies that suffer or have suffered conflicts”, the Secretary General of the United Nations defined transitional justice as,
the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof. (ONU, doc. S/2004/616, 2004, para. 8).
Thus, transitional justice is not a special form of justice, but a strategy –composed of multiple mechanisms– for the realization of the rights to justice, truth, reparation and guarantees of non-repetition in a context of serious violations of human rights and International Humanitarian Law.
The United Nations Special Rapporteur, on the promotion of truth, justice, reparation and guarantees of non-recurrence, stated that the areas of action that make up transitional justice all serve the ultimate end of pursuing justice, which in a less abstract functional analysis implies the achievement of two mediate goals: providing recognition to victims and fostering trust; and two final goals: contributing to reconciliation and strengthening the rule of law (ONU, doc. A/HRC/21/46, 2012, para. 21).
For such purposes there is no definitive model of transitional justice, but, according to internationally established norms, each State adopts its own according to its context, particularities and needs. What transitional justice processes do have in common, especially in their most recent developments, is a transformative vocation, since they aspire to be one of the basic mechanisms to guarantee the construction of a stable and lasting peace on the basis of respect and guaranteeing the rights of the victims. Therefore, our Constitutional Court has recognized the importance of weighing the obligations and rights of the State in a transitional justice process,
in order to achieve a balance between constitutional rights to justice and peace, with the understanding that neither is absolute and that, in transnational justice contexts, the right to justice can be modulated to harmonize it with the effectiveness of other rights and the fulfillment of the duties of the State, such as peace, reparation for victims or the attainment of the truth. (Corte Constitucional, 2014).
The Peace Agreement with the FARC-EP
After the demobilization of some of the guerrilla groups, such as the M-19, and except for some redoubts of former insurrection movements, only the two strongest guerrilla groups have remained active in recent years: the FARC and the ELN.
The FARC-EP, which was born in 1964 as an insurgent group of campesino origin with the purpose of accessing power through the revolution, intensified its methods and means of combat over the years, until it became a large military structure with an increasingly offensive focus. There were two firm attempts to achieve a negotiated peace between the FARC and the State before reaching the final agreement. The first, in 1984, with the signing of a ceasefire with President Belisario Betancur. The second, known as the Caguán peace process, began in 1998 with President Andrés Pastrana, and consisted of a failed negotiation without a ceasefire.
In 2012, after a phase of exploratory dialogues, President Juan Manuel Santos and the FARC announced the beginning of a new peace process. During several years of formal negotiations in Havana, the different points of an agenda, established under the principle that “nothing is agreed until everything is agreed”, were discussed. On September 26th, 2016, the Government of Colombia and the FARC-EP signed the Final Peace Agreement. However, this agreement was rejected on October 2nd in the referendum convened by the Government for its endorsement. The two negotiating parties readjusted several sections of the text in order to obtain a new agreement, which was signed on November 24th of the same year. Next, the “Congreso de la República” or “Congress of the Republic” endorsed the definitive agreement or the “Acuerdo Final para la Terminación del Conflicto y la Construcción de una Paz Estable y Duradera”.
In addition to ending the armed confrontation definitively, the Agreement aims to build a stable and lasting peace by initiating,
a transition phase that contributes to a greater integration of our territories, a greater social inclusion –especially for those who have lived outside the sphere of development and have suffered the conflict– and a strengthening of our democracy so that it may be deployed throughout the national territory and ensure that social conflicts are processed through institutional channels, with full guarantees for those who participate in politics. (Acuerdo Final para la Terminación del Conflicto y la Construcción de una Paz Estable y Duradera, 2016, p. 6).
The Peace Agreement is organized into six points on which the transformations, necessary to build peace in Colombia, are articulated. Point 1 (“Comprehensive Rural Reform”) is oriented towards the structural transformation of the countryside, favoring access and use of the land, improving conditions for the rural population and reducing poverty. The purpose of Point 2 (“Political participation: democratic openness for peacebuilding”) is to expand and strengthen democracy, opening spaces to new political actors and promoting citizen participation in decision making. Point 3 (“Ceasefire and bilateral and definitive abandonment of hostilities and weapons”) establishes the terms for the cease-fire and bilateral and definitive abandonment of hostilities, the abandonment of weapons by the FARC, the creation of the “Zonas Veredales Transitorias de Normalización” or “Transitional Normalization Zones” and the conditions for the reintegration of the demobilized guerrillas into society, all under the supervision of a monitoring and verification mechanism. Point 4 (“Solution to the problem of illicit drugs”) is dedicated to the fight against drug trafficking, as well as the promotion of the voluntary substitution of illicit crops and the transformation of the affected territories with a focus on rural development. In Point 5 (“Victims”), which is one of the central axes of the Agreement, the Integral System of Truth, Justice, Reparation and Non-Recurrence is established, which is composed of different judicial and extrajudicial mechanisms of transitional justice, including the “Jurisdicción Especial para la Paz” (JEP) or “Special Court for Peace”, the “Comisión de la Verdad” or “Truth Commission”, the “Unidad de Búsqueda de Desaparecidos” or “Missing Persons Search Unit”, as well as a set of comprehensive repair measures and guarantees of non-recurrence. Finally, Point 6 (“Implementation and verification mechanisms”) establishes various mechanisms for monitoring and verifying compliance with the Agreement in order to ensure its effective implementation.
The rights of the victims of the armed conflict
Victims of international crimes, or other serious human rights violations, play an increasingly central role in transitional justice processes, because without their recognition and participation, a peace that is real, stable and lasting can hardly be achieved. In the field of transitional justice, we have advanced from a model focused on crimes against human rights and International Humanitarian Law and their perpetrators, towards another based on the victims of these crimes and their rights. Thus, in the transitional justice processes, especially in recent stages, restorative approaches to justice –focused on the victim and their reparation– prevail over retributive approaches –focused on the offender and their punishment–.
In the international arena, the most widely accepted definition of victim is the one compiled in the basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, approved by the United Nations General Assembly in 2005. According to Paragraph 10:
victims are persons who have individually