Justice in the time of peace: evaluating the involvement of international courts in Colombia

• Author: Ashley Collins
• Position: Holds a J.D. from Georgetown University Law Center (2022) and a B.A. from Harvard University (2017)
• Pages: 513-540

NOTES

JUSTICE IN THE TIME OF PEACE: EVALUATING

THE INVOLVEMENT OF INTERNATIONAL COURTS

IN COLOMBIA

ASHLEY COLLINS*

ABSTRACT

When the Final Peace Agreement was signed by the Colombian National

Government and the Revolutionary Armed Forces of Colombia—People’s Army

(FARC-EP) in 2016, it marked the end of over fifty years of war. The agreement

itself attempted to strike a careful balance between seeking a peaceful end to

armed conflict and ensuring justice and accountability for atrocity crimes.

Indeed, scholars, diplomats, and actors in the human rights space have long

debated these two objectives—whether one should be prioritized over the other

and how to sequence them if both are pursued. Courts are particularly relevant

in this process, and the Colombian peace agreement creates a complex judicial

system to deal with issues of justice and accountability.

However, Colombia’s situation is unique because its peace process also falls

under the jurisdiction of not one, but two international courts—the International

Criminal Court (ICC) and the Inter-American Court of Human Rights

(IACtHR). Therefore, to understand Colombia’s relationship with the peace versus

justice question, it is necessary to examine the interaction of these international

courts within the context of the peace process, assess their impact, and reflect on

opportunities for improvement. About six years after the peace deal and at a time

when peace in Colombia seems fragile, it is worth re-evaluating what international

courts—and international involvement in Colombia more broadly—could and

should accomplish.

This Note argues that both the ICC and IACtHR have nuanced, but never-

theless substantial, roles to play in the Colombian peace process moving for-

ward. After assessing the impact of the international courts’ involvement so far

and examining the evolution of both courts’ views on the justice and peace

question over the years, the Note reflects on the potential ways that interna-

tional involvement could better support domestic efforts to navigate this tension

in the future, in accordance with the international courts’ differing mandates

* Ashley Collins holds a J.D. from Georgetown University Law Center (2022) and a B.A. from

Harvard University (2017). The author would like to thank Professor Jane Stromseth for her

feedback and guidance throughout the writing process. V

C 2022, Ashley Collins.

513

and areas of expertise. The Note concludes that there is still space for interna-

tional involvement in Colombia.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514

II. IMPACT AND EVOLUTION OF THE INTERNATIONAL COURTS’

INVOLVEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517

A. International Courts and the Judicialization of the Peace

Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517

B. Evolution of the ICC and IACtHR’s Views of Justice and

Peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518

1. Before the Peace Agreement. . . . . . . . . . . . . . . . . 518

2. After the Peace Agreement . . . . . . . . . . . . . . . . . . 524

III. POTENTIAL AVENUES FOR INTERNATIONAL INVOLVEMENT IN JUSTICE

AND PEACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531

A. The ICC’s “Hovering” and Proposed Reforms. . . . . . . . . . . 532

B. The IACtHR as a Human Rights Court and a Quasi-

Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 537

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 540

I. INTRODUCTION

In November 2016, the Colombian National Government and the

Revolutionary Armed Forces of Colombia—People’s Army (FARC-EP)

signed the “Final Agreement to End the Armed Conflict and Build a

Stable and Lasting Peace,” bringing an end to over fifty years of war.

1

See generally Final Agreement to End the Armed Conflict and Build a Stable and Lasting

Peace, Colom., Nov. 24, 2016, https://www.refworld.org/docid/5b68465c4.html [hereinafter

Final Peace Agreement].

The internal armed conflict killed over 260,000 Colombians and dis-

placed around 7.5 million people.

2

Ted Piccone, Peace with Justice: The Colombian Experience with Transitional Justice, BROOKINGS

INST. 3 (July 2019), https://www.brookings.edu/research/peace-with-justice-the-colombian-

experience-with-transitional-justice/.

The violence that engulfed the

country for over half a century involved a myriad of actors including

the military, guerrillas, paramilitaries, and other criminal armed

groups.

3

The FARC-EP, originally a Marxist-Leninist guerilla move-

ment, was one of the largest groups involved in the fighting and at vari-

ous times engaged in bombings, kidnappings, drug trafficking, and

extortion, among other activities.

4

The combined violence of the

FARC-EP, right-wing paramilitaries, and other criminal organizations

1.

2.

3. See id. at 2–4.

4. See id. at 3.

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

514 [Vol. 53