When International Legal Standards Meet Transitional Justice Processes

Abstract

The present contribution explores the interactions between international legal standards, as determined by the Rome Statute of the International Criminal Court (ICC), and national law before the Colombian Special Jurisdiction for Peace (SJP), and studies their respective rationales. It contrasts two situations: divergences between the two regimes, on the one hand, and their convergences on the other. First, it analyses three instances where the SJP Statute diverges from international criminal law, which resulted from decisions of the executive and legislative authorities in Colombia when drafting the Statute, namely: the SJP’s restorative penalties; the differentiated treatment of members of armed forces; and the notion of command responsibility. The authors offer three possible explanations for these departures of the Columbian legislation from international legal standards: Colombia’s willingness to carry out judicial proceedings at the national level instead of having recourse to the international community; the context of the negotiated peace in the country; and the national nature of the SJP. Second, the article addresses the convergences by examining recent practice of the judiciary in light of Macro Case 01 before the SJP, which shows a tendency towards the implementation of international legal standards in the SJP’s jurisprudence. The authors discuss the possible justification for this convergence, arguing that the adoption of international standards serves both to demonstrate the genuine character of the Colombian transitional justice process and subsequent judicial proceedings, and to allow for the closing of the preliminary examination before the ICC.