Fiona McKay addresses webinar audience alongside panellists
Colombia’s transitional justice process faces the monumental undertaking of ensuring meaningful victim participation on an unprecedented scale, panellists agreed during a webinar hosted by Justice Rapid Response and Colombia’s Special Jurisdiction for Peace (JEP) on 22 July.
The live discussion on Victim participation in transitional justice processes was attended by nearly 300 participants, with panellists taking part on behalf of Justice Rapid Response, the JEP and the Colombian Commission of Jurists (CCJ). Justice Rapid Response has deployed eight experts – some repeatedly – to the JEP, which Colombia established with an initial 15-year mandate to investigate and prosecute the worst crimes committed during the country’s 50-year armed conflict.
The JEP faces the daunting task of facilitating effective large-scale participation in a range of legal processes for victims of the armed conflict, while also coordinating the protection of those same victims amid ongoing insecurity.
“The JEP’s mandate is absolutely without precedent, it’s on a huge scale,” said victim participation expert Fiona McKay, who was deployed to the JEP by Justice Rapid Response in 2019. “It had to become operational very quickly, before it had the opportunity to establish detailed rules of procedure or standard practices.”
Ms. McKay said that the JEP faces a unique challenge in that it immediately had to deal with a wide range of crimes that had been committed in different parts of the country – from isolated jungle to dense cities – and committed by different actors. In addition, some cases comprise groups of individual victims, while other cases involve organizations.
“This has led us to create flexible models of participation,” said Judge Roberto Vidal from the JEP, underscoring that it is not possible for the transitional justice tribunal to apply one formula for victim participation. “We maintain standards that enable the right type of participation under different circumstances, but what we can’t do is apply the same participation model in all cases.”
This flexible approach means that the tribunal faces the constant dilemma of deciding which methodology to use for the case at hand.
Ms. McKay brought to the JEP her previous extensive experience in large-scale victim participation. When she oversaw the International Criminal Court’s Victim Participation and Reparations Section, she gained insight into how to build effective victim participation from scratch. That included everything from how to accredit victims, to organizing their legal representation, as well as managing interventions by victims and their lawyers in the courtroom.
What differentiates transitional justice cases in a court such as the JEP from international criminal cases is that they are wider in their definition – in terms of the scope of crimes, victims and perpetrators – and therefore involve broader victim participation. For example, Judge Vidal cited one single JEP case that has 200,000 certified victims. Given that victim participation is at the core of the JEP’s mandate and its restorative potential, this presents logistical challenges for engaging victims. Broad groups of victims can be informed about case updates by means of WhatsApp or by email for instance.
But for victims and their representatives, victim participation measures do not go far enough to meet the restorative aims of the JEP. Dr. Gustavo Gallón – Director of CCJ, a human rights NGO – highlighted that the JEP has only made it possible for victims to listen to hearings, from a separate room, since May 2019. This measure is still too restrictive on victim participation, according to Dr. Gallón, who stressed that many victims want the opportunity to face perpetrators in court and to find out the truth, or to be asked for forgiveness.
“This is the predominant attitude of the majority of the victims,” said Dr. Gallón concerning victims certified in the JEP’s cases, which often gather victims together aside from where the actual hearings are taking place. “And for this reason, the restrictions that have been established in relation to their participation should be made more flexible, should be improved.”
The coronavirus pandemic has only worsened access to justice in Colombia, said Dr. Gallón. Many victims live in isolated areas and do not have access to the hearings online, they no longer have access to psychosocial support, and restrictions on movement have stalled ongoing case investigations.
Judge Vidal commented that security – and as such protecting victims – is one of the biggest challenges for the JEP. The 2016 Peace Agreement was signed between the Colombian government and the rebel group FARC-EP, which is only one of many insurgent groups. To tackle the threat of ongoing violence from other groups to victim participation, the JEP created a protection group to conduct individual and collective risk analyses to protect communities and regions in coordination with authorities. As part of its collaboration with the JEP, Justice Rapid Response deployed a witness protection expert from its roster to support the JEP on these issues.
“The problem of insecurity in transitional justice is really serious for victims and we take the measures that we can, but we know that we have more work to do on this,” Judge Vidal told attendees.
The work of the JEP is also an exercise in creativity, he said, adding that the JEP has to find a balance between the international experience of victim participation and new answers that the JEP has to find for itself.
Justice Rapid Response, and other actors in international justice, stand to benefit from the experience of Colombia.
“We’re all looking forward in the future to learning from the experience that the JEP is having with victim participation now, because I think it will hugely benefit other processes in the future,” Ms. McKay concluded.
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Find out more in this video about Justice Rapid Response’s work with the JEP as Colombia navigates the transitional justice process.