Der Marco jurídico para la paz und die Rolle der transitional justice in Kolumbien
In 2016, the Colombian government concluded a peace agreement with the guerilla group FARC in order to terminate the armed conflict which has been raging in the country for more than fifty years. The most controversial issue during peace talks has continuously been the incentives that the government would grant the guerilla group in the form of penal benefits in order to demobilize and reintegrate them into the Colombian society. As Colombia is a democracy based on the rule of law, these penal benefits seem to conflict with the legal standards provided for by the constitution. In order to meet this challenge, the Colombian parliament opted for a constitutional amendment, stipulating a particular framework for “instruments of transitional justice”.
The application of the concept of transitional justice in Colombia demonstrates differences to paradigmatic cases of transitional justice. The concept obtains the function of a legal term which serves to justify deviations from legal standards. This entails adjustments of components and objectives of transitional justice and causes the risk of confusion or abuse of this term.
It can be seen that the legal concept of transitional justice, as it has been established by the Colombian constitutional court, reveals a lack of structure and demonstrates legal deficits. An alternative model is being presented in the dissertation, which may serve to maintain the case law of the constitutional court and to avoid these defects. Based on this model, the scope of application of the legal framework regarding the inclusion of other actors in the peace agreement is evaluated as a critical factor. Furthermore, the selection of individual perpetrators for prosecution and the characteristics of the legal term of the political crime are being discussed.