Since the end of the Cold War, Transitional Justice (TJ) has become the dominant framework informing peacebuilding when wars end. Each year, countries establish TJ systems to come to terms with a violent past. However, TJ rarely lives up to its promises. Criticism of TJ often focuses on its (in)ability to heal the wounds of violence, foster forgiveness and reconciliation in divided societies, or deliver restorative justice for both the victims and victimisers of a conflict. In this piece, I shed light on an often-overlooked limitation of TJ: its disregard for the Rule of Law (RoL).
RoL, understood as a principle of governance by which law governs societies, is often seen to belong outside the remit of TJ. This is a highly problematic omission. TJ systems are designed to overcome violent legacies of the past and to sustain peace and development in the long term. But TJ must also work to ensure non-repetition by addressing structural weaknesses in the rule of law. The experience of Colombia since 2016 demonstrates some of the implications of neglecting the RoL as an integral component of TJ.
Transitional Justice in Colombia: A fragile Rule of Law and the reproduction of violence
In 2016, the Colombian government signed a peace agreement with the FARC, the largest guerrilla insurgency in the country, to end half a century of civil war. However, the Colombian conflict not only involved the FARC, but guerrilla groups, private militias, and armed drug cartels that continue to thrive in alienated rural environments with weak RoL and chronic state absence. Rural Colombia has historically been fertile ground for conflict, since the national justice system limits access to justice for isolated populations and there is virtually no law enforcement capacity. As a result, groups resolve their grievances by either taking up arms or hiring private militias for self-defence. These factors have been the driving force of a conflict that has produced over 9 million victims.
This backdrop has made the implementation of the 2016 Agreement challenging since the remaining armed groups continue to profit from illicit economies, most notably from the cocaine trade, and have little incentive to end violence. Cycles of violence continue six years into the post-settlement period. Since the Agreement was signed, 315 former members of the FARC and 1327 social leaders have been killed, most of them by armed groups seeking to seize the territories and drug routes previously controlled by the FARC. The growing violence is a consequence of weak institutional capacity for law enforcement and a structural vacuum in the RoL.
The intensification of violence since 2016 points to the failure of Colombia’s TJ to strengthen the RoL by improving access to justice and building confidence in state institutions. Rather, pervaded by a detrimental short-termism, TJ has put grassroots reconciliation ahead of strengthening the RoL. Yet, grassroots reconciliation alone cannot produce a self-sustaining peace and prevent a relapse into conflict. A stable and lasting peace requires that groups involved in violence begin to address their grievances through traditional justice mechanisms, instead of reverting to violence to do so. TJ processes and mechanisms should be designed with a longer-term purpose, to strengthen RoL and state presence across the national territory. This means working to procure political participation, the delivery of public services, and the development of infrastructure.
In addition, the persistence of violence in Colombia since 2016 challenges the conviction that TJ processes and mechanisms do well in prioritising a society’s violent past. Colombia demonstrates that grassroots reconciliation and the RoL go hand in hand. If TJ systems are designed for social reconciliation alone, they risk neglecting the long-term and structural aspects of conflict. Instead, with a legal framework that operates under a strong RoL and proactively works to strengthen it, TJ can more effectively deliver justice, truth, and reparations to victims, humanise victimisers, whilst promoting the restoration of social tissue and the reinvigoration of civil society. A stronger RoL helps address a conflict’s root causes and supports TJ systems in facilitating grassroots reconciliation.
Redefining the priorities of Transitional Justice
In conception and design, TJ systems cannot be devoted to fostering reconciliation alone. Strengthening RoL should be a top priority in a state’s post-conflict agenda and of the TJ processes and mechanisms it establishes. TJ systems must address the root causes of conflict, build a state’s institutional capacities, and strengthen RoL to prevent a relapse into conflict. If the RoL is weak, dialogue and reconciliation will not lead actors involved in violence to resort to the justice system.
Colombia’s experience with TJ highlights the importance of a strong RoL in building and supporting a lasting peace. It shows that the failure to address underlying fragilities in the RoL is likely to perpetuate cycles of violence. Colombia’s TJ has not done enough to strengthen the RoL and reduce the structural inequalities on which peace ultimately rests. This helps to explain the recurrence of violent conflict in the country six years after the signature of the peace agreement. In the absence of a RoL component, TJ cannot adequately deliver substantive justice for large-scale abuses, nor peace and development.