The burden of time: challenges to accountability in transitional justice

Scholars and practitioners have pointed to the connections – and contradictions – between human rights, international criminal law and transitional justice when it comes to addressing injustices committed during wars or under repressive regimes and the transition to peace and democracy. The turn to criminal law in Tanzania to promote accountability of those who have violated international human rights and humanitarian law has been widely discussed. However, a temporal dimension is missing from the debate.

Accountability for egregious crimes committed during the war faces the challenge of the times. As decades pass, perpetrators die, memories fade, and hopes fade. Criminal accountability, which relies on a formal process of proving and punishing these crimes, can hardly meet expectations of immediate sociopolitical change.

The case of Colombia

Colombia is an example of the challenges of accountability and the passage of time. After five decades of internal armed conflict involving multiple actors and claiming over ten million victims, individually or collectively, the country has Transition without a process to ensure sustainable peace and reconciliation. In recent years, strategies of truth, reparation and non-repetition have been initiated. However, there is also a tendency towards criminal prosecution based on several legal mechanisms operating in parallel (the Colombian judicial system, the Justice and Peace Law and the Special Jurisdiction for Peace).

In 2016, the final peace agreement between the government and the FARC-EP guerrillas established the Comprehensive System for Peace, which includes: the Special Jurisdiction for Peace (SJP), the judicial mechanism tasked with investigating, solving, prosecuting and punishing the most serious crimes committed during over 50 years of armed conflict. The SJP aims to strike a balance between restorative and retributive justice and includes some unique features such as prosecuting the main perpetrators of serious crimes through prioritization and selection of cases, a special sanctions regime and some exemptions from criminal responsibility. The SJP has a maximum of 20 years to fulfil this mandate as of March 2018.

After six years of operation, the SJP opened 11 macro cases without a single verdict. In a very short period of time, the judges were faced with the task of i) reconstructing events of massive violence, ii) gathering evidence of individual and collective responsibility while protecting the rights of the accused and iii) promoting the participation of members of the affected communities.

SJP’s work oscillates between ensuring the effectiveness of due process and meeting demands for swift justice after decades of impunity. The risk is that SJP attempts to discharge its duty by offering a quick fix that may lead to uncertain outcomes at the cost of poor application of the law and fail to meet victims’ rights.

To prevent these undesirable consequences, a better understanding of the importance of time is needed. In seeking the right balance between human rights, international criminal law and criminal justice as a formula for overcoming the heinous crimes committed during war, human rights activists should keep in mind the interactions between these fields and their different timelines.

Human Rights, ICL and TJ: Different Timelines

Although human rights, ICL and TJ are based on a linear, abstract and sequential understanding of time – expressed in metaphors such as move forward, leave the past behind, transition tothese approaches work differently over time.

The International Criminal Court takes time and functions largely as a retrospective system of prosecution and punishment. For example, trials before the International Criminal Court can last at least ten years, and the tribunals established in the former Yugoslavia (ICTY), Rwanda (ICTR) or Cambodia (ECCC) have developed over 15 to 25 years and have delivered few verdicts. Over the years or decades, the institutionalisation of the tribunals in TJ facilities and the subsequent formal investigations and prosecutions are confronted with numerous practical and legal problems. The age of the alleged perpetrators, the reconstruction of the factual circumstances using the required standard of proof and the lack of motivation of witnesses and victims are some of the difficulties posed by trials after so many years.

TJ, on the other hand, is primarily driven by the urgency to achieve peace and democracy in order to move forward from the history of atrocities and abuses. The acceleration effect and the associated virtue of speed shape societal expectations towards those affected by war and reinforce the view that transitional justice processes will be completed quickly. As a result, truth-seeking, justice and reparation are time-limited.

As a result, there is a tension between human rights, international criminal law and transitional justice practices and approaches that could affect opportunities for accountability in transitional situations.

Amid this paradox, judicial investigation mechanisms have focused predominantly on investigating gross violations, adhering to the strict procedures and thresholds of the ICL, despite the limited time available for such a task.

This is the case of the SJP, which in its initial prosecutions relied on the Rome Statute and the judgments of the ICC, ICTY and ICTR, raising doubts about its legal technique. The pressure to comply with international standards collides with the political pressure to find quick solutions.

The SJP can rethink its methodological, procedural and legal approach to cases, taking into account the impact of the passage of time without sacrificing substantive decisions that capture experiences of violence and address criminal responsibilities. Furthermore, advancing the debate on the challenges of accountability in relation to time requires rejecting a linear paradigm and instead considering multiplicity, simultaneity and circularity. Human rights practitioners must understand that the relationship between past, present and future is not always sequential and can involve reversals, pauses and repetitions.