A Balancing Act: The Right to Peace and Justice
17 Pages Posted: 16 Jan 2020
Date Written: September 29, 2019
This commentary reviews the article "The Judicialization of Peace" which offers an important empirical analysis of whether and how the involvement of international courts can alter the form and substance of accountability brokered through peace agreements through the case study of Colombia, which recently negotiated the 2016 Peace Accord with the Revolutionary Armed Forces of Colombia (“FARC”). This commentary responds to the observation that while the Colombian peace process was deeply influenced by the normative framework championed by the ICC and the IACtHR, the final outcome ran contrary to what would be expected with a much less punitive approach to transitional justice than international law would seem to require. While this conclusion may leave the Transitional Justice field concerned, this commentary offers some perspective as to why the development when viewed historically is actually encouraging. In particular, the pressure felt by local actors is a remarkable advancement from the state of affairs only thirty years ago when such actors did whatever it took to broker peace, often at the cost of any type of accountability, thus setting in motion the peace v. justice debate. At the same time, the commentary recognizes the vibrant international debate on amnesties and accountability that could suggest that the case of Colombia may not be such an outlier despite the Inter-American trend to the contrary. Additionally, the author argues that the less punitive outcome in Colombia resulted not in spite of the presumed demands of the IACtHR but because of it. Through its 2012 Mozote Massacre Case, the Inter-American Human Court of Human Rights signaled an opportunity to soften its decade-long stance on amnesty and move toward better alignment with the growing global consensus which embraces a more nuanced approach to criminal justice in contexts where transitional justice might be adopted. Yet, the author explains how the Mozote case gave the Colombians a novel legal basis for creating a less punitive version of TJ through another human right — the right to peace, which until now has never factored into a transitional justice process as an explicit goal and is not even hard law. This new approach signifies an important paradigm shift in TJ, swaying the pendulum of the peace v. justice debate once again by now requiring the right to justice of victims of a conflict to be balanced with the right of every member of the same society to peace.
Keywords: Transitional justice, human rights, International Criminal Law, Post-Conflict
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