The Pragmatism of Justice: On The International Lawfulness and Legitimacy of Alternative Sanctions

Abstract

Abstract: during the Colombian armed conflict, abuses against the enjoyment of human rights  which amounted to international crimes were committed by the different sides in the combats with the former armed group FARC. Accordingly, the cessation of hostilities which said group  has an immense positive potential in terms of the non-repetition of those abuses by that armed group, and the lessening of risks of potential harms caused in connection to hostilities with it. While peace is thus a fully desirable goal, the context in which negotiations between the former Colombian government and the FARC took place could not ignore socio-legal constructs that have been developed during the last decades in terms of demands of the fight against the impunity of crimes attributable to both State and non-State actors under human rights law. This is reflected in several provisions of the final Peace Agreement. But a thorny question that was hotly debated was whether the granting of alternative sanctions to those who appeared before the Special Peace Jurisdiction and met some conditions, instead of being imposed traditional incarceration, are in conformity with the demands of international law. This article explores why alternative sanctions may be consistent with them, considering that all criminal responses are social constructs which have changed over time, and how important goals enshrined under Inter-American standards can well be achieved by means of imposing alternative forms of punishment. However, this is not a free pass, considering that actual responses must have some proportionality in light of the specific conduct that was carried out and the harm it caused, and
must also ensure that truth and reparation are provided instead of circumvented. Otherwise, sanctions would be such in name only, and res judicata would be apparent and not effective. Whether these elements are satisfied will depend to a large degree on the actual decisions of the Special Peace Jurisdiction. Considering how crucial the implementation and recognition of the effects of the Peace Agreement and its derived standards are, it is in the interest of the different parties to ensure that the respective international legal conditions are observed.

Keywords: alternative sanctions; international human rights law; transitional justice; postconflict;
fight against impunity; international crimes.