By: Lisa J. Laplante

Introduction

The Judicialization of Peace offers an important empirical analysis of whether and how the involvement of international courts can alter the form and substance of accountability brokered through peace agreements. Specifically, authors Courtney Hillebrecht, Alexandra Huneeus, with the collaboration of Sandra Borda, offer this analysis through the case study of Colombia, which recently negotiated the 2016 Peace Accord with the Revolutionary Armed Forces of Colombia (“FARC”). To assess the international-national dynamic of law formation, the authors divert from a traditional approach of analyzing court judgments and compliance, and instead employ a “symbolic-interactive perspective” to bring a magnifying glass to the local impact made by international courts during a peace negotiation process. Gathering rich data from a wide variety of sources that captured local debates, they illustrate how local stakeholders navigated the complicated process of brokering peace against the seemingly rigid normative backdrop that demands full criminal accountability for human rights crimes –an obligation enforced by the Inter-American Court of Human Rights (“IACtHR”) and the International Criminal Court (“ICC”). They conclude that the IACtHR and ICC exerted the most influence through their “shadow effects.”

The authors provide several illustrations of how local actors operate under this shadow. They contend that the influence of these courts arises out of the “imprint of prior litigation and the threat of future litigation” and that this in turn exerts pressure to shape domestic decision-making so as to have “judicialized” the Colombia’s peace process—all without issuing a single judgment. This judicialized process occurs through three “paths”: first, the international courts “signal” their expectations to the domestic audiences; second, state and non-state local actors bargain in the shadow of the law by using international law as political cover and to legitimate their policy preferences, while wielding the threat of international litigation to win concessions; and third, other domestic actors push back to curb or channel the influence of the international courts and even try to influence the direction of the international courts.[1]

The authors conclude that while the Colombian peace process was deeply influenced by the normative framework championed by the ICC and the IACtHR, the final outcome ran contrary to what would be expected. The Colombian Peace Accord contains a much less punitive approach to transitional justice than international law would seem to require. Although the Colombians felt compelled to abide by international law and guarantee criminal investigations and prosecutions for serious human rights violations, their “solution to the peace/justice dilemma” was to offer a bifurcated accountability process by including the possibility of lighter punishment even for the most serious crimes in exchange for the perpetrators’ involvement in satisfying the rights of victims to the truth, reparations, and non-repetition.[2] The authors state that “unprecedented concession to the politics of peacemaking represents a significant shift in TJ practice.”[3] In other words, the Colombian case represents a situation of what may be viewed as compromised justice, falling short of the absolute justice that may be expected by international law.

While this conclusion may leave the Transitional Justice (TJ) field concerned, I will offer some perspective as to why the development when viewed historically is actually encouraging. In particular, the pressure felt by local actors is a remarkable advancement from the state of affairs only thirty years ago when such actors did whatever it took to broker peace, often at the cost of any type of accountability. At the same time, I contextualize this outcome against the backdrop of a vibrant international debate on amnesties and accountability that could suggest that the case of Colombia may not be such an outlier despite the Inter-American trend to the contrary.  In fact, the Colombian Peace Accords may even present a more robust accountability model than is currently accepted practice in other corners of the world.

My commentary picks up where the authors conclude in recognizing how “legal globalization” consists of a recursive cycle of integrating global norm making and national law-making. This in turn creates intersections in which new evolutions in the law occur “where national experiences influence global norm making and global norms constrain national lawmaking, in an asymmetric but mutual fashion.”[4] As the authors recognize, the Colombian peace accords were not the result of a top down process with “pre-set constraints on peace-making” with blueprints to follow or discard.[5] Instead, Colombians constructed their own sophisticated blueprint “within bounds of reasonable if untried interpretation of the existing law and norms.”[6] In my analysis below, I unpack what I consider to be the heart of what makes the Colombian experience so impactful in the field of TJ.

I argue that the less punitive outcome in Colombia resulted not in spite of the presumed demands of the IACtHR but because of it. In response to the signaling of the IACtHR, Colombia suggested that it was poised to adjust its decade-long stance on amnesty and move toward better alignment with the growing global consensus which embraces a more nuanced approach to criminal justice in contexts where transitional justice might be adopted. What is remarkable, and not fully discussed by the authors, is that the IACtHR gave the Colombians a novel legal basis for creating a less punitive version of TJ that does not depend entirely on IHL or the initial self-identification of an internal armed conflict. Instead, it is framed by another human right—the right to peace. Thus, it is not just the fact that Colombia opted for a less punitive approach that presents a radical shift in the TJ paradigm, but rather that it did so relying entirely on dicta from the IACtHR 2012 Mozote Massacre Case.[7] Indeed, the Colombians ran with the IACtHR’s invitation to justify its compromised justice based on the right to peace, which until now has never factored into a transitional justice process as an explicit goal and is not even hard law.

While the authors make parenthetical reference to this development, they contend that it merely illustrates the influence of politics in approaching the question of justice. Instead, I argue that on the contrary the introduction of this new right into the TJ paradigm further legalizes the balancing test between peace and justice.[8] As I will discuss, it took human rights (particularly the victims’ right to justice) to sway the pendulum of the peace v. justice debate towards justice, and the only way that it could legitimately swing back towards the middle is through a competing human right, which in this case is the right of every member of society to peace.

Historical Perspective: The Peace v. Justice Debate

It is easy to lose sight of historical advances in the evolution of international law, especially concerning the ideals of justice. It is worth pausing for a moment to appreciate that Colombia reached a negotiated peace agreement without resort to blanket amnesties. This development signals a remarkably fast movement toward new customary international law as well as the dynamic, fast evolving nature of the field of TJ given that only three decades ago most governments could issue any kind of amnesty without worrying about international legal consequences.

Indeed, the field of TJ arose largely in response to criminal justice being foreclosed for the many thousands of victims of serious human rights violations living under the fist of repressive regimes in the Southern Cone. Criminal prosecutions of perpetrators were crippled or blocked by amnesty laws in Argentina and Chile,[9] followed by a long line of other countries in the region making amnesties a signature feature of political transitions in Latin America.[10] At that time, political leaders never questioned their unqualified right to issue these types of laws nor did they worry that they would ever be held accountable for their crimes or be challenged by international enforcement bodies. Impunity was a normal state of affairs.

This comfort with impunity was reasonable given that amnesties constituted a sovereign right from time immemorial, with roots tracing back to biblical and medieval historical accounts.[11]   Amnesties even played a role in the formation of the modern nation state system through the 1648 Westphalian peace agreements which provided that all “Violences, Hostilitys, Damages and Expences, without any respect to Persons or Things, shall be entirely abolish’d in such a manner that all that might be demanded of, or pretended to, by each other on that behalf, shall be bury’d in eternal Oblivion.”[12] Certainly, the Westphalian notion of statehood rests on the core principle that sovereign states enjoy the presumption against intervention and the unfettered prerogative to manage their internal affairs—which includes facilitating or blocking criminal justice. For most of history, no positive international law prohibited resort to amnesties and by default permitted impunity.

Not all sectors of these societies accepted justice foreclosed as a forgone conclusion.  Rather, victims, their families, and advocates took to the streets in protest to demand justice. Academics and practitioners began a systematic attack against the normative reality of using amnesty laws in the name of peace. Interestingly they dedicated less energy to contesting the assumption that amnesties were required for peace and focused instead on how international law limited the State’s discretion to apply amnesties. They argued that human rights law established a state duty to investigate and prosecute which corresponded to a victim’s rights to justice.[13] This strategic challenge to the status quo gave rise to what famously came to be known as the peace v. justice debate that largely shaped the field’s discourse, and which Hillebrecht and Huneeus use to frame their own understanding of the significance of Colombia’s less punitive approach to justice.[14]

The peace v. justice debate is best captured by the now famous exchange in 1991 between Diane F. Orentlicher and Carlos S. Nino in the Yale Law Journal. Each present two equally valued realities that were viewed as diametrically opposed and mutually exclusive.[15] While Orentlicher systematically presented the human rights law justification for the State’s duty to prosecute serious human rights violations, Nino stated that if we want peace in turbulent, fragile, post-conflict settings, we need amnesties. In teaching this debate, I have often been struck by the differences of approach of each esteemed jurist. Orentlincher appears to work much harder to make her case through many more pages and footnotes given that at the time her argument was largely aspirational and, from Nino’s viewpoint, unrealistically idealistic. Indeed, Nino’s position, argued in far fewer pages, is soberingly persuasive given the stark challenges of post-conflict peacemaking. He comes across as more at ease and certain of his position. Certainly, Nino wrote from a more comfortable place than Orentlincher given that the history of amnesties had been an acceptable state practice for as long as the modern international law system had existed.

Remarkably, Nino most likely never predicted how international treaty-based bodies would erode this entrenched normative reality only a decade after he wrote his article. He may have underestimated the impact of victims and their advocates taking their street protest to the relatively new international realm of human rights enforcement bodies to demand that their quest for justice be recognized as a right. This pushback led to one of the most important international decisions on the matter issued by the Inter-American Court of Human Rights in 2001. The Barrios Altos Case analyzed the amnesty laws passed by former Peruvian President Alberto Fujimori to shield himself and his co-conspirators from prosecution.[16] The IACtHR famously declared:

… all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.[17]

As I argued in 2009, this international human rights body contributed significantly to shaping the TJ field by tipping the scales in the peace v. justice debate towards accountability. Criminal law became not only an accepted feature of transitional justice but also suddenly a required one.[18]  The IACtHR continued to uphold this seminal holding through subsequent decisions finding similar amnesties in five other countries unlawful.[19] With amnesties rendered “unlawful” in Latin America, member states began to overturn or reform their own laws. This resulted in many human rights perpetrators being brought to justice in a phenomenon that Kathryn Sikkink referred to as a “justice cascade.”[20]

Running parallel to the development in the Americas, pronouncements, guidelines, resolutions, and other sources were issued by other regional and universal bodies also limiting the application of amnesties.[21] Significantly, many of these different norm generating institutions cited to each other, engaging in an important formation of custom that culminated into what today has hardened into positive international law restricting the unfettered use of amnesties.  Finally, the quest by victims for justice is not just aspirational, it is the law. This is a remarkable achievement less than thirty years since the Orentlincher-Nino debate and fifteen years since the IACtHR Barrios Altos ruling.

The Judicialization of Peace reflects this new normative universe in which international law sets hard limits to the use of amnesties and alters the behavior of countries, like Colombia, as they embark on transitional justice processes. The article provides an invaluable peek into what it means to negotiate peace “in the shadow” of international law. The authors describe how local political actors relied on the omnipotent courts to negotiate within the parameters of what was acceptable within an “externally imposed notion of accountability.”[22] Reading this account makes one wonder if the authors were simply describing the desired effects of a well-functioning system of the rule of law, although in this case global rule of law where international courts, such as the IACtHR and the ICC, exert normative influence without ever needing to issue a decision on a particular dispute.[23] In reality, the global rule of law works best in these shadows given that most disputes will never reach an international court, as the authors recognize. It is thus more efficient to influence state behavior towards this decentralized enforcement of human rights. But, for this localized compliance to work, domestic actors must not only be cognizant of these international norms but also worry about them.

I bore witness to this kind of worry in Colombia in 2014 when I was invited by the government to deliver a talk about reparations, after which I was approached by government representatives involved in the peace negotiations in Havana, Cuba. They were working within the special unit specifically dedicated to the inclusion of a transitional justice roadmap that would assure the rights of the millions of victims in Colombia and they were eager to talk to me about the Barrios Altos case given my own writing on the case. At that time, I was struck by the fact that they were asking me about a compromised justice approach. They clearly felt bound by the international law on amnesties pronounced by the IACtHR and were trying to find some flexibility while still staying within the confines of international law.

In particular they wanted to talk to me about the recently issued IACtHR decision as a solution to the peace v. justice dilemma. Indeed, in the Mozote Case, the IACtHR created an opening in its otherwise uncompromising jurisprudence on amnesty.  In that case, the IACtHR found El Salvador’s Law of General Amnesty for the Consolidation of Peace, passed following that country’s negotiated peace agreement in 1992, to be contrary to the American Convention on Human Rights. The IACtHR nevertheless recognized that the situation in El Salvador occurred during an internal armed conflict and required the application of International Humanitarian Law.[24] In particular, the Court relied on Article 6(5) of Protocol II Additional to the 1949 Geneva Conventions and interpretations of it by the International Committee of the Red Cross, which establishes that broad amnesties may follow the end of conflict except in cases of war crimes, crimes against humanity, and genocide.[25]

I realize now that my Colombian colleagues were acting within the very shadow effect that The Judicialization of Peace discusses, relying heavily on the Mozote Case to justify a less punitive approach. Yet, significantly they were not just passive subjects to the shadow effect, but rather creative norm entrepreneurs.   Specifically, they focused squarely on the concurring opinion in the Mozote Case written by Judge Diego García-Sayán to justify their less punitive approach.

As a side note, Diego García-Sayán also happened to be a part of the transitional justice government in Peru serving as the Minister of Justice in 2001 when that government sought the judicialization of peace through the Barrios Altos case. Peru gambled that the Court would take a hard line on amnesties. Its strategy paid off and Peru won the remarkable declaration that amnesties were no longer available in the dictator’s toolbox.[26] In contrast with the Colombians, the Peruvians were not interested in a less punitive model of transitional justice that included amnesties, because the opponents (Shining Path) were already in jail. In fact, they were deeply afraid of calling their situation an internal armed conflict given the risk of Shining Path receiving a possible “get out of jail free” card based on Article 6.5 of Protocol II. The IACtHR did not choose to view Peru’s situation as such. It is thus perhaps ironic that Judge García-Sayán would be the one to open the door to a more flexible approach to amnesties within the Inter-American System given that he had been part of an effort to create a more rigid standard of accountability when he was a local political actor.

However, ten years later in 2012 Judge García-Sayán was not writing in a bubble, but rather wrote his opinion against the backdrop of a vibrant debate on amnesties.  In fact, upon writing my own article on Barrios Altos in which I argued that amnesties were unlawful, I quickly discovered that I had joined one of the most contentious and unsettled areas of international law scholarship, and often found myself in the minority against an ever growing united front advocating for the retention of amnesties for brokering peace. Outside of the regional system that shaped my views existed a contemporary milieu of scholars who argued that some amnesties are still legal, especially in light of the lack of uniform and consistent state practice.[27]  Today, legal scholars take a far more nuanced and flexible approach to the topic of amnesties, often producing criteria and factors for figuring out the right balance of peace and justice.[28]

Thus, Judge Diego García-Sayán’s concurring opinion could be viewed as a bridge to close the gap in what would arguably be regional exceptionalism.[29] It may have also been a type of system correction to address what perhaps has become too rigid a standard of accountability tipping the scales too far towards an absolutism that contradicts the very essence of TJ, which arose as a field based on the notion of flexibility and alternative paths to justice.

The New TJ Reality: Peace and Justice

In his concurring opinion in the Mozote Case, García-Sayán seeks a nuanced position with regard to compromised justice, recognizing that even if blanket amnesties, especially connected to repressive dictators, may no longer be used, more lenient criminal justice schemes may be acceptable when attempting to broker peace after a war. Yet he recognizes that “[t]here is no norm in positive international law that has explicitly prescribed any kind of amnesty.”[30] Instead, the context dictates what makes sense and what is permissible.  He explains:

in the specific context of processes of widespread violence and non-international armed conflicts, amnesties may lead, at least in theory and according to the specific case or circumstance, in different directions. Consequently, this creates a whole range of possible outcomes that can delimit the exercise of assessing the interests at stake in order to combine the aim of investigating, punishing, and repairing gross human rights violations, on the one hand, with that of national reconciliation and a negotiated solution to a non-international armed conflict, on the other. There is no universally applicable solution to the dilemmas posed by these opposing forces, because it depends on the specific context, although there are guidelines that must be taken into account.[31]

This passage resonates with the Nino-like stance of needing to recognize the realities on the ground in deciding what measures of justice are possible. Judge García-Sayán’s instructions reflect the organizing principle of transitional justice that the configuration of justice is context specific, but adheres to the more recently recognized baseline rules, including accountability and justice. At the same time, he suggests that how we view justice can vary and also depends on a more balanced approach that weighs conflicting rights.[32] His rationale resonates with Nino’s as he claims this approach will assure that peace negotiations “conclude a conflict and put an end to future serious human rights violations.”[33] Yet, where he differs from Nino is that he does not frame peace as a policy preference of a government, but rather as a human right of other members of the society.  In doing so, he introduces a new competing right into the TJ justice equation. As he explains:

States have a legal obligation to address the rights of the victims and, with the same intensity, the obligation to prevent further acts of violence and to achieve peace in an armed conflict by the means at its disposal. Peace as a product of a negotiation is offered as a morally and politically superior alternative to peace as a result of the annihilation of the opponent. Therefore, international human rights law should consider that peace is a right and that the State must achieve it.[34]

In his call to recognize the right to peace, Judge García-Sayán leaves ambiguous how it would become part of human rights law. Yet, he gives a provocative invitation to countries like Colombia to pursue this recommendation, and seems to suggest that if they take this path and wind up back at the IACtHR, they may encounter a friendly reception. Indeed, it is exactly that type of legal “transaction” that would be needed to transform the soft law of peace into the binding hard law that would greatly impact the field of Transitional Justice.

Judge García-Sayán employs the less mandatory word “should” when calling for the recognition of the right to peace because, as of now, the right has yet to be fully recognized in international law. In fact, for the most part, it has been overlooked by the transitional justice movement.[35] Moreover, the right to peace has been minimally studied or focused on in international law. Philip Alston is one of the few scholars to offer early commentary on the right to peace, making the case in 1980 that this often-ignored right was not only the raison d’etre of the international law system but also a recognized human right, proclaiming that the “broad outline” of the right was at that time firmly established.[36] To make this assertion, he relied on soft law instruments such as the Declaration on the Preparation of Societies for Life in Peace (Res. 33/73), adopted by the United Nations General Assembly in 1978, which recognizes peace as both “mankind’s paramount value” and a right.[37]

Yet, Alston interrogated the question as to whether the right to peace is “a viable juridical proposition” that could be “usefully integrated into the present framework of international law.” [38] He expressed concern that the precise content of the right had not reached a sufficient degree of certainty that would be required to guide states on how it should be protected and promoted.[39] While some elements were already discernible, he predicted that other elements would need to evolve through “lengthy and subtle process of customary formation in the international arena.”[40]

By the 1990s, Alston lamented that the right to peace had “failed to capture the global imagination” and had been “dropped like a stone” within the United Nations.[41] Focus on the right only reemerged in the last decade through the concerted advocacy work of the Spanish Society for International Human Rights Law, a Spanish NGO,[42] whose advocacy helped to push the Human Right Council (“HRC”) to create an Advisory Committee on the Right to Peace. This committee eventually drafted the UN Draft Declaration on the Right to Peace in which Article 1 establishes the peoples’ right to peace as “universal, indivisible, independent and interrelated.”[43]  In July 2016, just months before the Colombian peace agreement was finalized, the HRC adopted the Declaration by a majority of its Member States and then proposed it to the United Nations General Assembly, which approved it in December of that same year.[44] After an extensive preamble, the Declaration consists of only five articles, leading with Article 1 stating: “Everyone has the right to enjoy peace such that all human rights are promoted and protected and development is fully realized.”[45]

While a significant development, this soft law instrument still leaves unsettled Alston’s original concern of whether the right is juridically viable since it had not been subject to enforcement analogous to other human rights. Worse yet, its viability as hard law could be undermined by the fact that some states continue to resist the idea that peace is a right as opposed to a political goal.[46] Most interesting for the purpose of this commentary, there is still limited jurisprudence on the right to peace coming from international human rights monitoring bodies such as the IACtHR—making the concurring opinion of Judge García-Sayán all the more relevant as a foreshadowing of what may lay ahead. The only explicit ruling on the right to peace arose in a case where the IACtHR recognized that the mismanagement of the environment can exacerbate tensions and lead to war, which would thus constitute a violation of the right to peace.[47] It has yet to rule on a case on how the right to peace impacts the use of amnesty or other measures which limit criminal investigations and trials in peacemaking processes that also involve transitional justice.

For that reason, Colombia would serve as a particularly interesting case to test the juridical viability of the right to peace, especially as to whether it legally justifies a less punitive approach to transitional justice. As I will discuss next, Colombia also presents an ideal case to test this new right given its long-standing recognition of the right to peace.

The Case of Colombia: Elevating the Right to Peace

The Colombian Constitutional Court (“CCC”) has produced what it recently characterized as “prolific constitutional jurisprudence” on the right to peace, viewing it as a “defining element” of the country’s constitutional law.[48] Indeed, this right is enshrined in Article 22 of the nation’s 1991 Constitution, which itself was conceived as a type of “peace treaty” since it emerged out of efforts at that time to bring an end to Colombia’s decades-long conflict.[49] Not long after the Constitution was promulgated, the CCC recognized the right to peace “as a right that belongs to every person” and which gives individuals the power to demand compliance from both the State and individuals.^[50] This position seems to give the right to peace equal stature to other human rights.

Over the last three decades, the CCC has continued to expand upon the right to peace, particularly as it related to the country’s ongoing efforts to broker peace in order to end one of the region’s most enduring internal armed conflicts.  In all of these decisions, the CCC has consistently balanced the right to peace with justice to justify arrangements that amount to a compromise to absolute criminal justice.[51] At the same time, the CCC has engaged with international law as it developed its jurisprudence on the right to peace, arguing that it could be recognized as a human right (although until recently based only on soft law instruments).[52]

One of the most recent examples of how the CCC balanced the right to peace with the right to justice occurred when reviewing the constitutionality of Justice and Peace Law 975 of 2005, which created a legal framework to demobilize illegally armed groups through reduced and qualified punishments—an arrangement viewed as an indulto velado (veiled pardon) by the plaintiffs.[53] In Gustavo Gallón Giraldo v. Colombia, the CCC sought to resolve the inherent tension between “finding peace by establishing juridical mechanisms to disarticulate armed groups” and “the interests of justice” under human rights, international criminal law, and international humanitarian law.[54] Notably, in applying a balancing approach to reconcile the right to peace and the right to justice, the CCC avoided characterizing the right to peace as an “absolute value” which would justify no criminal justice, and instead subjected peace to the consideration of other constitutional rights like victims’ right to truth, justice, reparations and the non-repetition of violence—rights that bind the court through the international law.[55]

In regard to the assertions made by the authors in The Judicialization of Peace, the Justice and Peace Law was created in the shadow of the IACtHR but without the assurances that compromised justice would withstand the scrutiny of the international body. Indeed, in August 2005, soon after the Justice and Peace Law was signed, victims’ representatives in Mapiripán v. Colombia, which was already pending when the law passed, asked the IACtHR to consider whether Law 975/05 interfered with the victims’ right to a remedy.[56] The Court granted this motion of “supervening event,” in accordance with Article 44.3 of the court’s procedures, and responded by simply referring to its “jurisprudence constante”:

domestic legal provision of law can impede compliance by a State with the obligation to investigate and punish those responsible for human rights violations. Specifically, the following are unacceptable: amnesty provisions, rules regarding extinguishment and establishment of exclusions of liability that seek to impede investigation and punishment of those responsible for grave human rights violations—such as those of the instant case, executions and forced disappearances. The Court reiterates that the State’s obligation to adequately investigate and to punish those responsible, as appropriate, must be carried out diligently to avoid impunity and repetition of this type of acts…[57]

This pronouncement was not all that surprising given that it was issued just several years after Barrios Altos had been decided. Interestingly, the IACtHR did not discuss whether Colombia’s situation amounted to an internal armed conflict triggering the IHL framework and thus justifying a less punitive approach, nor did it discuss the right to peace. In fact, as The Judicialization of Peace notes, the IACtHR had up to seventeen opportunities in its contentious judgments concerning the human rights violations occurring during Colombia’s conflict to discuss whether IHL applied or if the right to peace should be balanced with the right to justice.[58] Yet, it always demanded full justice. Thus, up until recently, the CCC never included reference to the IACtHR jurisprudence in its decision to balance the competing rights and justify any compromise of justice. As will be discussed, only with the 2016 Peace Accords has the CCC been able to reference the IACtHR to justify a compromise between peace and justice in Colombia’s effort to broker peace.

Peace Accords and The Integral System of Truth, Justice, Reparation, and Non-Repetition

As of the time of writing, the CCC has issued five decisions regarding different aspects of The Sistema Integral de Verdad, Justicia, Reparación y no Repetición (Integral System of Truth, Justice, Reparation and Non-Repetition) created through the 2016 Peace Accords.[59] Specific to the aspect of amnesty, pardon, and special criminal treatments, the CCC issued a decision in March 2018 concerning the Law 1820 of 2016 which implements the less punitive approach discussed in The Judicialization of Peace.[60] Unlike in its past decisions on the right to peace, the CCC engages directly with the jurisprudence of the Inter-American Court of Human Rights to justify adopting a complementary approach to reconcile seemingly contradictory norms arising out of international human rights law, international humanitarian law, and international criminal law.[61] Undertaking what it deems to be an “ambitious analysis” of the question of amnesty, the CCC seeks to harmonize seemingly diverging law on amnesties in the context of peace negotiations.[62]

To begin, the CCC recognizes the baseline normative limit set by the IACtHR with regard to its general prohibition of amnesties, citing to the now famous passage of the 2001 Barrios Altos case.[63] It then refers to the more recent decision in the Mozote Case in which the IACtHR distinguishes Barrios Altos’s bright line rule. Specifically, it notes that this ban refers to self-amnesties issued in transitions from repression and not necessarily to countries transitioning from internal armed conflict, which is instead regulated by IHL. In particular, Article 6 of Protocol II of 1977 calls for the widest possible amnesty at the cessation of hostilities.[64] The CCC seizes upon the IACtHR’s suggestion that the components of justice may be more flexible in circumstances of war in which not all amnesties or limits to prosecution are prohibited.

Significantly, the CCC clarifies that while it is bound by Article 6 of Protocol II, it does not consider the directive on amnesties to be a “peremptory norm” that obligates governments to offer amnesties, but rather is discretionary and only relevant to political crimes which can be defined by the State.[65] Thus, the CCC views amnesty as a valid tool for achieving reconciliation and stable peace, but limited in scope. IHL amnesties are valid as long as they meet two conditions. First, they are never issued for the most serious crimes such as war crimes, genocide, and crimes against humanity. Second, they are complemented by the most extensive rights to truth, justice, and reparations.^[66]  In establishing these conditions, the CCC stresses that it is adopting the IACtHR’s notion that the right to peace and the right to justice are interdependent and indivisible in nature and thus require a “holistic approach” in their application.[67] The CCC also applies the complementary approach when reviewing the Special Jurisdiction for Peace established to apply the alternative sentencing and amnesties, finding it constitutional given that it was designed to guarantee all fundamental rights, “namely, the right to peace and the rights of victims to the truth, to justice, to reparation and the non-repetition.”[68]

A Delicate Balancing Act: Reconciling the Right to Peace and the Right to Justice

The CCC’s latest jurisprudence squarely engages with and challenges the framing of Transitional Justice to suggest it is time to abandon the pretext of a peace versus justice debate and instead to recognize that it should be a dialogue about peace and justice.[69] Recognizing the historical tendency to pit justice against peace and “enter into unsalvageable tensions” because of the assumption that securing peace always means “sacrificing” justice, the CCC asserts that the demands of peace and justice are complementary and it must strive to find ways to enforce the two rights mutually.[70] As the CCC explains, “within the constitutional order it is not possible to speak of peace without justice, nor to speak of justice without peace.”[71] Yet, in asserting a modified hierarchy of TJ goals, the CCC places the right to peace at the top, naming the primary aims to be:

1. Respond to generalized peace and assure the right to peace
2. Guarantee the victims right to truth, justice, reparations, and non-repetition of violence
3. Strengthen the rule of law and democracy
4. Promote social reconciliation.[72]

Thus, although embracing a holistic approach to balance the different rights at play, the CCC suggests that peace is a condition for the exercise of all other rights, stating:

Peaceful coexistence is a basic goal of the State and must be the ultimate motive of the forces of constitutional order. Peace is also a presupposition of the democratic process, free and open, and a necessary condition for the effective enjoyment of fundamental rights.^[73]

As I have noted in the past with regard to the CCC’s jurisprudence, there is great significance of elevating the right to peace to this stature since it radically alters the approach to amnesties and other measures that may compromise now well-established rights of victims to justice.[74] Namely, in the historical evolution of the peace vs.  justice debate, the arguments made by the proponents of justice won mostly because victims’ rights trumped States’ political/policy aims of peace. Yet, when peace is elevated to being recognized as a right it dramatically alters the equation since it requires the balancing of competing fundamental rights. The rights of victims to justice can no longer trump a state’s political quest for peace because these rights must now be balanced with the competing human right to peace which belongs to all members of the society (victim or not).[75] Moreover, it would be unlikely that either side of this equation could “win” in favor of absolute justice or absolute impunity. A compromise must always be struck. Framing peace as a right provides a stronger normative basis for accepting compromised justice in the form of amnesties, pardons, and alternative sentencing. This reformulation presents a radical new direction in transitional justice, prompted by an international court that was once viewed as reversing the historical trend of impunity.

Indeed, one remarkable aspect of Colombia’s efforts to revise the goals of TJ and in effect dismantle the peace vs. justice debate is that it was done in the shadow of the IACtHR. The 2016 Peace Accords cite to the Mozote Case to highlight the State’s duty to protect the right to peace, even emphasizing that it should be viewed in “same intensity” to the duty to attend victims’ rights.[76] In turn, the CCC very purposefully cites to the Mozote Case to support the balancing approach struck by the 2016 Peace Accords, seeming to respond directly to Judge García-Sayán’s invitation to integrate the right to peace into the international human rights law. In a way, Colombia has presented a counter-offer to the IACtHR to bring some hard law edges to what has been a largely soft law notion of peace as a human right—should the IACtHR be called upon to review Colombia’s less punitive approach to TJ, as The Judicialization of Peace speculates may very well occur.

Prosecutorial Discretion: Balancing Justice and Peace

In promoting a balancing approach to the right to peace and the right to justice, the Colombians swung the peace vs. justice pendulum back towards the middle, away from a hard stance on criminal justice and toward a more balanced approach that renders compromises in criminal justice lawful, at least some of the time. While it goes beyond the scope of this Comment to fully explore the implications of this pendulum swing, I will speculate on some preliminary directions it might take the field.

To begin, the field of TJ has evolved to require a minimum of criminal justice to prohibit absolute impunity, as was the practice thirty years ago with the use of blanket amnesties. Now, it is understood that lasting peace may not be possible without a baseline of accountability. Yet, the ideals of criminal justice also are not absolute, despite prior interpretations of the IACtHR’s jurisprudence up until now. On this point, Judge García-Sayán observed in his concurring opinion in the Mozote Case:

…in certain transitional situations between armed conflicts and peace, it can happen that a State is not in a position to implement fully and simultaneously, the various international rights and obligations it has assumed. In these circumstances, taking into consideration that none of those rights and obligations is of an absolute nature, it is legitimate that they be weighed in such a way that the satisfaction of some does not affect the exercise of the others disproportionately. Thus, the degree of justice that can be achieved is not an isolated component from which legitimate frustrations and dissatisfactions can arise, but part of an ambitious process of transition towards mutual tolerance and peace.[77]

This approach reflects a comprehensive concept of justice that shifts away from pure retribution as the means for assuring it. Indeed, the CCC recognizes that “certain facets” of justice and peace may cause inevitable, even irresolvable, tension, when the equation of justice is strictly focused on retribution through penal punishment which overlooks the many other forms of punishment.[78] This new reality might look like reduced and alternative penalties in order to assure the victims’ rights to an effective remedy, which may entail alternative mechanisms such as truth commissions, reparations, and other TJ processes.

Along these lines, Judge García-Sayán does not abandon the three elements of a state’s obligation to take actions aimed at investigating and establishing the facts, identifying individual responsibilities, and applying punishments proportionate to the gravity of the violations.[79] Yet he recognizes that “[e]ven though the aim of criminal justice should be to accomplish all three tasks satisfactorily, if applying criminal sanctions is complicated, the other components should not be affected or delayed.”[80] He points out that the right of both victims and society to access the truth may require that justice not be antagonistic to the transitional justice required in peace and reconciliation processes. In that context, “specific guidelines can be designed for processing those responsible for the most serious violations, opening the way, for example, to giving priority to the most serious cases as a way to handle a problem which, in theory, could apply to many thousands of those held for trial, dealing with less serious cases by other mechanisms.”[81]

In particular wanting to assure that combatants choose peace and submit to justice, García-Sayán argues that it is necessary to devise ways to process those accused of committing serious crimes. He proposes that:

routes towards alternative or suspended sentences could be designed and implemented; but, without losing sight of the fact that this may vary substantially according to both the degree of responsibility for serious crimes and the extent to which responsibility is acknowledged and information is provided about what happened. This may give rise to important differences between the “perpetrators” and those who performed functions of high command and gave the orders.[82]

In essence, he is describing a situation that may be analogous with ordinary prosecutorial discretion. In fact, an emerging line of scholarship has begun to explore how the concept of prosecutorial discretion should be embraced in TJ as it is in any domestic criminal law situation where justice is nuanced.[83] Indeed, prosecutors always have discretion in any legal system. But concessions that they make such as guilty pleas, exchanges of information for lighter sentences, and other compromises to absolute justice are made within the state’s criminal justice system and thus do not undermine the rule of law.[84] Given that no TJ experience could ever possibly prosecute all the potential perpetrators (given that they are often not even identifiable), this approach assures the prioritization of the cases most likely to succeed in court while also preserving the basic rights of victims to truth and reparations.

Conclusion

Time will tell whether Colombia’s less punitive model of transitional justice coupled with alternative approaches to accountability struck the right balance between peace and justice. If the principle of non-repetition, commonly referred to as “nunca mas”/never again, is the measure of success, we can only continue to observe whether the longest internal armed conflict in the region has been brought to a final end. While some may argue that the only measure of success is the cessation of violence between the FARC and the government, others may demand broader measures of success, especially in light of the continued killing of human rights activists and violence in territories fueled by narcotrafficking. Arguably, guaranteeing the right to peace requires much more than a bargain between peace and justice. Indeed, it has been steadily recognized by the TJ field that lasting peace requires more systematic and structural reforms to the socio-economic realities of the country to address some of the underlying causes of the violence. With regard to these types of essential reforms, neither the IACtHR nor the ICC will have much “shadow effect” over national politics.

Lisa J. Laplante is Professor of Law and Director of the Center for International Law and Policy at New England Law in Boston. The author would like to thank Louise Mallinder for her thoughtful comments regarding this commentary.

[1] Courtney Hillebrecht & Alexandra Huneeus, with Sandra Borda, The Judicialization of Peace 59 Harv. Int’l L. J. 279, 294 (2018).

[2] Id. at 318, 322.

[3] Id. at 322.

[4] Id. at 330 (Referencing Terence Halliday & Bruce G. Carruthers, The Recursivity of Law: Global Norm Making and National Lawmaking in the Globalization of Corporate Insolvency Regime, 112(4) Am. J. Soc. 1135, 1138 (2007).)

[5] Id. at 329.

[6] Id.

[7] Massacres of El Mozote and Nearby Places v. El Salvador, Preliminary Exceptions, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 292 (Oct. 25, 2012).

[8] Hillebrecht and Huneeus, supra note 1, at 320 (“Once you have two rights that are in tension but of equal importance, we are back in the realm of balancing, and ultimately, politics.”).

[9] In Chile, General Pinochet passed Decree no. 2191 of April 19, 1978 to grant his administration a self-amnesty for the crimes committed by the army and the security forces who helped enforce his authoritarian regime. Argentina attempted prosecutions when its conflict ended but the Ley de Punto Final in 1986 and the Ley de Obediencia Debida in 1987 severely limited prosecutions which were eventually pardoned by the subsequent administration.  The experiences in these two countries is often explained as the rise of truth commissions and other non-judicial, restorative measures to assure some accountability for the past.

[10] Some examples include amnesties passed in El Salvador (Decree no. 805 of October 28, 1987), Brazil (Act no. 6683 of August 28, 1979, covering the period from 2 September 1961 to 15 August 1979), Uruguay (Act no. 15848 from 1986), Peru (General Amnesty Act no. 26479 on June 14, 1995).

[11] R.C. Slye, The Legitimacy of Amnesties Under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible?, 43 Va. J. Int’l L 173 (2002).

[12] The “Treaty of Westphalia” is the Peace Treaty Between the Holy Roman Emperor and the King of France and Their Respective Allies, Oct. 24, 1648, available at http://avalon.law.yale.edu/17th_century/westphal.asp

[13] See Lisa J. Laplante, Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes, 49 Va. J. Int’l 915 (2009).

[14] See Chandra Lekha Sriram, Confronting Past Human Rights Violations:  Justice v. Peace in Times of Transition (2004).

[15] See generally Diane F. Orentlicher,  Settling Accounts: The Duty To Prosecute Human Rights Violations of a Prior Regime, 100 Yale L. J. 2537 (1991); Carlos S. Nino, The Duty to Punish Past Abuses of Human Rights Put Into Context: The Case of Argentina, 100 Yale L. J.  2619 (1991).

[16] Barrios Altos v. Peru, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 75 (Mar. 14, 2001).

[17] Id. ¶ 41.

[18] See Laplante, supra note 13.

[19] See Alexandra Huneeus, Courts Resisting Courts:  Lessons from the Inter-American Court’s Struggle to Enforce Human Rights, 44 Cornell Int’L L. J. 493, 502-03 (2011).

[20] Kathryn Sikkink, The Justice Cascade:  How Human Rights Prosecutions are Changing World Politics (2011).

[21] See Reta E. Raymond, When Two Elephants Fights, It’s the Grass that Suffers: Proposed Amnesty Legislation for Peace and Justice, 40 Syracuse J. Int’l L. Comm. 407 (2013).

[22] Hillebrecht and Huneeus, supra note 1, at 303.

[23] See Lisa J. Laplante, The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence 43 John Marshall L. Rev. 635 (2010).

[24] IACtHR’s reasoning rested on the fact that the General Assembly had passed the blanket amnesty law after the peace agreement and work of the truth commission and actually contradicted the provisions in the peace agreement which called for criminal investigations. See Massacres of El Mozote and Nearby Places v. El Salvador, Preliminary Exceptions, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 292 (Oct. 25, 2012)  ¶¶ 287-89.

[25] Id. at ¶¶ 285-286 (referring to Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts art. 6.5, June 8, 1977 [hereinafter Protocol II]).

[26] Barrios Altos v. Peru, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 75 (Mar. 14, 2001).

[27] Raymond, supra note 21, at 800.

[28] See, e.g., The Transitional Justice Institute, The Belfast Guidelines on Amnesty and Accountability (2013).

[29] Louise Mallinder, The End of Amnesty or Regional Overreach? Interpreting the Erosion of South America’s Amnesty Laws, 65 Int’l Comp. L. Q. 645 (2016).

[30] Massacres of El Mozote and Nearby Places v. El Salvador, Preliminary Exceptions, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 292 (Oct. 25, 2012) ¶17.

[31] Id. ¶ 20.

[32] Id. ¶ 27.

[33] Id.

[34] Id. ¶ 37 (italics added).

[35] In writing this Comment, I conducted a search of the field’s main journal, The International Journal of Transitional Justice, and I discovered only one reference to the right to peace, which appeared in a footnote. See Catherine Turner, Delivering Lasting Peace, Democracy and Human Rights in Times of Transition: The Role of International Law, 2 Int’l J. Trans. Just. 126, fn 27 (2008) (“Indeed, Franck envisaged that this could ‘readily be shown to be an important subsidiary of the community′s most important norm: the right to peace.’”).

[36] Philip Alston, Peace as Human Right, 11 Security Dialogue 319, 328 (1980).

[37] Id. at 319, 324–25.

[38] Id. at 319.

[39] Id. at 325.

[40] Id.

[41] Philip Allston, Peoples’ Rights 279, 281 (2005). That said, attention did not totally disappear.  For example, the 1984 UN General Assembly Resolution on Declaration on the Right to Peoples to Peace establishes a duty on states to fulfill the right.  See G.A. Res. 39/11, Declaration on the Right to Peoples to Peace (Nov. 12, 1984).  UNESCO also focused on the right in UNESCO Report by the Director-General on the Human Right to Peace, doc. 29 C/59 (1997).  The U.N. General Assembly recognized the right to peace in resolutions A/RES/57/216 of February 2003, A/RES/60/163 of 2 March 2006, and A/RES/63/189 of 18 March 2009, in which the General Assembly declared “that the peoples of our planet have a sacred right to peace and that the preservation and promotion of peace constitutes a fundamental obligation of each State.”

[42] Cecilia M. Bailliet, Normative Foundation of the International Law of Peace, in Promoting Peace Through International Law 43, 56–57 (Cecilia Marcela Bailliet & Kjetil Mujezinovic Larsen eds., 2015).

[43] Right to Peace, Human Rights Council (Apr. 16, 2014), https://www.ohchr.org/EN/HRBodies/HRC/AdvisoryCommittee/Pages/RightToPeace.aspx.

[44] G.A. Res. 71/189 (Dec. 19, 2016).

[45] Id. ¶ 1.

[46] Ola Engdahl, Protection of Human Rights and the Maintenances of International Peace and Security: Necessary Precondition or Clash of Interests? in Promoting Peace Through International Law 109, 120 (Cecilia Marcela Bailliet & Kjetil Mujezinovic Larsen eds., 2015).

[47] The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity (Arts. 4(1) and 5(1) American Convention on Human Rights)), Advisory Opinion OC-23/18, Inter-Am. Ct. H.R., (ser. A) No. 23, ¶ 66 (Nov. 15, 2017).

[48] Corte Constitucional [C.C.] [Constitutional Court], agosto 15, 2018, Sentencia C-080/18, Gaceta de la Corte Constitucional [G.C.C.] (p. 186) (Colom.).

[49] La Constitución Política de Colombia de 1991, art. 22 (“La paz es un derecho y un deber de obligatorio cumplimiento.”).

^[50] Corte Constitucional [C.C.] [Constitutional Court], marzo 10, 1993, Sentencia T-102/93, Gaceta de la Corte Constitucional [G.C.C.] (p. 13).

[51] The CCC recognizes this trend when discussing the development of its jurisprudence. See Sentence C-080/18.

[52] See Corte Constitucional [C.C.] [Constitutional Court], mayo 18, 2006, Sentencia C-370/2006, Gaceta de la Corte Constitucional [G.C.C.] ¶4.1.5. (citing UNESCO Director-General, Report of the Director-General on the Human Right to Peace, presented to the Secretary-General and the Minister of Foreign Affairs and Ministers of Education of Member States, U.N. Doc. 29 C/59 (Oct. 29, 1997)).

[53] See Lisa J. Laplante & Kimberly Theidon, Transitional Justice in Times of Conflict: Colombia’s Ley de Justicia y Paz, 28 Mich. J. Int’L L. 49, 83–85 (2006); see also Law No. 975 of July 22, 2005, arts. 3, 29; O.G. No. 45.980, July 25, 2005 (incorporating an “alternative” sentence which could include the suspension of previously existing sentences and proceedings that would be replaced with imprisonment of five to eight years for beneficiaries who comply with the basic demobilizing requirements).

[54] Sentencia C-370/2006 at 26.

[55] Corte Constitucional [C.C.] [Constitutional Court], marzo 1 2018, Sentencia C-007/18, Expediente RPZ-001, Gaceta de la Corte Constitucional [G.C.C.] ¶ 125 (“Por medio de la cual se dictan disposiciones sobre amnistía, indulto y tratamientos especiales y otras disposiciones.”).

[56] Case of the Mapiripán Massacre v. Colombia, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 134, ¶ 301 (Sep. 15, 2005).

[57] Id. ¶ 304.

[58] Hillebrecht and Huneeus, supra note 1, at 295.

[59] Corte Constitucional [C.C.] [Constitutional Court], octubre 10, 1993, Sentencia C-630/17, Gaceta de la Corte Constitucional [G.C.C.]; Corte Constitucional [C.C.] [Constitutional Court], noviembre 14, 1993, Sentencia C-674/17, Gaceta de la Corte Constitucional [G.C.C.]; Corte Constitucional [C.C.] [Constitutional Court], marzo 1, 2018, Sentencia C-007/18, Gaceta de la Corte Constitucional [G.C.C.]; Corte Constitucional [C.C.] [Constitutional Court], marzo 21, 2018, Sentencia C-017/18, Gaceta de la Corte Constitucional [G.C.C.]; Corte Constitucional [C.C.] [Constitutional Court], agosto 15, 2018, Sentencia C-080/18, Gaceta de la Corte Constitucional [G.C.C.].

[60] See Sentencia C-007/18.

[61] Id., at ¶¶ 130–31.

[62] Id.

[63] Id. at ¶¶ 139–40.

[64] Id. at ¶ 144.

[65] Id. at ¶ 135–38.

^[66] Id. ¶ 146.

[67] Id. ¶ 128.

[68] Corte Constitucional [C.C.] [Constitutional Court], agosto 15, 2018, Sentencia C-080/18, Gaceta de la Corte Constitucional [G.C.C] (p. 185, 274) (citing to the Declaration on the Right to Peace, among other U.N. sources).

[69] Sentencia C-007/18 ¶122.

[70] Id. ¶ 114.

[71] Sentencia C-080/18 ¶ 189–90 (citing to the Declaration on the Right to Peace, among other U.N. sources).

[72] Sentencia C-007/18 ¶ 118.

^[73] Id. ¶ 104 (citing to Sentencia T-102 de 1993).

[74] Writing on this decision in 2007, my colleague Kimberly Theidon and I noted, “This treatment of the right to peace presents an interesting new angle to transitional justice paradigms. The detailed presentation of the legal doctrine underlying the right to peace suggests an intention to elevate it beyond a mere political prerogative. If given equal standing with other fundamental rights such as justice, the right to peace could trigger the application of a proportionality test. If left as only a political aspiration, the right to peace would lose out to more commonly recognized human rights.” Laplante and Theidon, supra note 53, at 100.

[75] García-Sayán also recognized this paradigmatic shift, writing, “A negotiated solution to the internal armed conflict raises several issues regarding the weighing of these rights, within the legitimate discussion on the need to conclude the conflict and put an end to future serious human rights violations. States have a legal obligation to address the rights of the victims and, with the same intensity, the obligation to prevent further acts of violence and to achieve peace in an armed conflict by the means at its disposal. Peace as a product of a negotiation is offered as a morally and politically superior alternative to peace as a result of the annihilation of the opponent.” Massacres of El Mozote and Nearby Places v. El Salvador, Preliminary Exceptions, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 292 (Oct. 25, 2012), Concurring Opinion of Judge Diego Garcia-Sayan, ¶ 17.

[76] Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace, Nov. 24, 2016, 153, available at: especiales.presidencia.gov.co/Documents/20170620-dejacion…/acuerdo-final-ingles.pdf.

[77] Massacres of Mozote, García-Sayán Concurring Opinion, ¶ 38.

[78] Corte Constitucional [C.C.] [Constitutional Court], marzo 1 2018, Sentencia C-007/18, Expediente RPZ-001, Gaceta de la Corte Constitucional [G.C.C.] ¶ 123.

[79] Massacres of Mozote, García-Sayán Concurring Opinion, ¶ 28.

[80] Id.

[81] Id. ¶ 29.

[82] Id. ¶ 30.

[83] Ronald Slye, The Legitimacy of Amnesties Under International Law and General Principles of Anglo-American Law: Is a Legitimate Amnesty Possible? 43 Va. J. Int’L. L. 173, 184–86 (2002); Mariano Gaitan, Prosecutorial Discretion in the Investigation and Prosecution of Massive Human Rights Violations:  Lessons from Argentine Experience, 32 Am. U. Int’l L. Rev. 539 (2017).

[84] In taking this position, I recognize that there is always the risk that this discretion can be abused. But under ideal conditions, it is a normal aspect of criminal justice.

By Courtney Hillebrecht and Alexandra Huneeus

By what measure can we best assess the work of international courts? Reflecting on The Judicialization of Peace,[1] Roberto Gargarella takes us to task for failing to make explicit a theory of democracy by which to understand the role that international courts played in the Colombian peace negotiations.[2] He then draws on his theory of deliberative democracy to demonstrate what such an assessment might look like, properly done.

We readily concede that decision-making based on democratic deliberation is among the most important political aspirations. But we just as readily disagree that the only or best way to study and evaluate the work of international courts is to read their judgments for what they say about democratic deliberation. Several considerations undercut Gargarella’s overall critique of our article, and reveal the limits to his preferred method of evaluating court interventions.  

First is the distinction between is and ought—between descriptive and normative scholarship. It was not our intent to evaluate the roles taken by international courts in the peace process against a normative ideal. Rather, we set out to provide an accurate and nuanced description of the work of the International Criminal Court (“ICC”) and the Inter-American Court of Human Rights. Leading up to the accord, many argued that these international courts would impede peace by imposing a strong norm of criminal accountability that neither the Fuerzas Armadas Revolucionarias de Colombia (“FARC”) rebels nor the Colombian military would accept. This concern, of course, lies at the core of the peace versus justice dilemma in transitional justice debates. Our fine-grained analysis of the ways that the two courts did engage in the peace debates showed the concern to be misplaced in this case. As we argued, “judicialization was not just a top-down process by which international courts enforce pre-set constraints on peace-making states.”[3] Rather, the courts’ impact was to provide a platform on which Colombian actors were able “to specify and reinterpret the content of Colombia’s international obligations, and thereby potentially usher in a new transnational regime of transitional justice.”[4]

Gargarella also asserts that we assume a theory of law in which law has a pre-fixed meaning that domestic political and judicial authorities either apply, or fail to apply.[5] But we had no such assumption. Rather, it was precisely our research question to understand how the law was working in action. Our finding, as the quote above shows, was that the way law worked in this case is more akin to Gargarella’s description of his preferred theory, in which norms “are collectively interpreted and re-interpreted by the different members of the legal community, in an ongoing, unfinished process.”[6]

Even if our object had been to evaluate the courts’ intervention in the peace process through the lens of deliberative democracy, Gargarella’s method would fall short. His method consists of analyzing the content of salient “final word” judgments of apex courts. That might work as a way to provide a critique of the reasoning of a discrete judgment (which we take to be Gargarella’s intent in his original critique of the Gelman v. Uruguay judgment).[7] But it is not the way to evaluate the actual impact of a courts’ intervention over a policy. One problem is that the method looks at only one dimension of court behavior—judgments—whereas courts communicate and interact through many different channels. In the article we specifically set out to study the roles taken by two international courts that had no case or controversy. The peace process was not, formally speaking, on their dockets. That is why there are no judgments to analyze. There are, however, recommendations, compliance reports, press releases, a corpus iuris, and even forms of intervention and interaction that leave no written record, such as diplomatic meetings, public ceremonies, and press conferences. None of these claim binding authority in the sense of a judgment. Formally speaking these pronouncements are perhaps more akin to weak-form review, but weaker.[8] Yet there is no question that they form part of the influence international courts exerted in the political debate.

The proposed method falls short, further, by failing to examine the way courts’ pronouncements are used in the political debate after the judgment and beyond the courtroom.[9] The point is not only that judges often do not have the final word in reality, but also that the effects a judgment has in the world can be different from those intended by the text. Even a decision such as Gelman that is not itself “sufficiently sensitive” to the democratic pedigree of the laws it is reviewing nonetheless might catalyze an important debate and have salubrious effects on democratic deliberation on the issue of amnesty (or not—it is an empirical question).[10] One would have to consider, for example, whether the judgment was implemented or ignored; whether the judgment went to congress for democratic deliberation; and whether it had other types of effects such as re-shaping public debate, re-setting agendas, providing talking points to civil society, fostering (or curtailing) further litigation, or reshaping default assumptions held by the public. In other words, it is one thing to evaluate the correctness of a judgment’s reasoning, and another to assess its effect on politics on the ground.[11] The most dynamic debate about Brown v. Board of Education, for example, turns not on the caliber of its reasoning or correctness of its holding, but on assessing the impact the judgment actually had on school desegregation, on social movements, and in reshaping social norms.[12]

Additionally, the proposed method falls short as a method of analysis of jurisprudence because it looks at judgments as discrete events, whereas courts return to the same issue iteratively. As Manuel Góngora notes, to assess the impact of the Colombian Constitutional Court on the peace process one would have to include in the analysis the forty-seven judgments it issued between 2016 and 2018 on the implementation of the peace accord.[13] It could be, for example, that the court curtails a deliberative process in one judgment but only as a tactic to create political space for more deliberation-friendly judgments later.[14] Or, a court could change its interpretation of the law. In the case of the Inter-American Court, it is interesting to note that its post-Gelman statements on amnesties have at times been more deferential to political processes.[15]

A final critique of Gargarella’s Comment pertains to the context of civil war. We agree that the Colombian peace negotiations did not conform to the conditions for democratic deliberation laid out by Gargarella. This was undeniably a negotiation between actors with limited democratic legitimacy. Indeed, one of them—the FARC—was not part of democratic governance at all. It may be, as Gargarella notes, that “democracy is not improved when deliberation is reduced to a procedure that is fundamentally structured by pressures and decisions of actors that have limited democratic legitimacy.”[16] But one might add that the chances for achieving the conditions for democratic deliberation are greatly improved once peace is achieved. This is the case even if the process through which peace is achieved is imperfect, as was the case here and in most peace processes ever to unfold. The question, then, is whether the role of international courts should be judged only in terms of their contribution to deliberative democracy, or also with regard to their role in helping achieve a peace that is stable and lasting. Is a robust democracy not the endpoint, rather than the grounds on which such a process can unfold? Yet another way of putting this is that peace is itself an important aspiration distinct from democratic deliberation. At the least, Gargarella ought to consider that an assessment of the judicial role in the Colombian peace process is subject to different considerations than that of a judicial intervention in the Uruguayan amnesty debates of 2011, when peace did not hang in the balance. At the level of normative assessment, it is also interesting to consider whether the role of the ICC and the Inter-American Court should be evaluated differently given the different commitments States undertake in submitting to their jurisdictions (particularly as democracy is a value that is deeply embedded in the Inter-American System, and peace is a value deeply embedded in the Rome Statute).

In closing, it bears emphasizing that the quality of liberal democracy is a priority for study in our political time. Roberto Gargarella’s influential writings on constitutionalism take on a renewed importance in light of democratic decay and the rise of populist politics in recent times. But they do not provide the only or most relevant lens through which international court influence should be studied.  The point is not that normative and empirical scholarship are too far apart to be in fruitful conversation. It is rather that such a conversation can only take place if each side truly takes into consideration the differences between the methods and ends that distinguish them.

Courtney Hillebrecht is Samuel Clark Waugh Professor of International Relations and Director of the Forsythe Family Program on Human Rights and Humanitarian Affairs at University of Nebraska. Alexandra Huneeus is Professor of Law and Director of the Global Legal Studies Center at University of Wisconsin Law School. The authors would like to thank Tatiana Alfonso, Manuel Góngora, and Pablo Rueda for insightful conversations on this debate.

[1] Courtney Hillebrecht, Alexandra Huneeus, with Sandra Borda, The Judicialization of Peace, 59 Harv. Int’l L.J. 279 (2018)

[2] Roberto Gargarella, Some Reservations Concerning the Judicialization of Peace, 59 Harv. Int’l L.J. Comment (Feb. 3, 2019), https://harvardilj.org/2019/02/reservations_peace/

[3] Hillebrecht and Huneeus, supra note 1, at 329.

[4] Id. at 281.

[5] Gargarella, supra note 2, at 15.

[6] Id. at 15-16. Admittedly we did describe the back and forth on the law as a type of “deliberation,” but we did not by this term refer to the Habermasian theory of deliberative democracy, but only to the term’s common dictionary definition of “a discussion and consideration by a group of persons of the reasons for and against a measure.” While we should have defined our use of the term, we believe it was clear that we were making a descriptive rather than normative argument. Further, we did at times use evaluative language without providing a baseline. Again, however, the thrust of the article was clearly to determine, empirically, whether and how the courts were having impact.

[7] Roberto Gargarella, No Place for Popular Sovereignty. Democracy, Rights, and Punishment in Gelman v. Uruguay, (Yale Law School SELA (Seminario en Latinoamérica de Teoría Constitucional y Política) Papers, 2013).

[8] Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2007).

[9] Socio-legal scholars refer to the effect that court decisions have on negotiations that occur outside the realm of litigation as “the shadow of the law.” See Robert H. Mnookin and Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce 88 Yale L.J. 950 (1979).

[10] Gargarella, supra note 2, at 10.

[11] Socio-legal scholars often refer to the distinction between what the law purports do and what it actually does as “the gap between law in the books and law in action.” See, e.g., Jon Gould and Scott Barclay, Mind the Gap: The Place of Gap Studies in Sociolegal Scholarship, 8 Ann. Rev. of L. and Soc. Sci. 323 (2012) (reviewing scholarship that outlines the difference).

[12] See, e.g., Gerald Rosenburg, The Hollow Hope: Can Courts Bring About Social Change? (1991); Michael Klarman, Brown v. Board of Education and the Civil Rights Movement (2004); Michael McCann, Reform Litigation on Trial, 17 L. Soc. Inquiry 715 (1992) (reviewing Gerald Rosenburg, The Hollow Hope: Can Courts Bring About Social Change? (1991)).

[13] Manuel Góngora, The Inter-Americanization of Transitional Justice: The Colombian Case from a Coevolutionary Perspective, paper presented at International Society of Public Law Annual Conference, ICON-S, July 1, 2019, (proposing a coevolutionary analysis of the involvement of courts in the design of Colombian transitional justice based on a dialogic, polycentric, and incremental view of their interactions).

[14] Which is only to say that courts are also strategic actors. See Lee Epstein and Jack Knight, Toward a Strategic Revolution in Judicial Politics: A Look Back, A Look Ahead, 53 Pol. Res. Q. 625-661 (2000) (reviewing scholarship that views courts as strategic actors).

[15] Massacres of El Mozote and Nearby Places v. El Salvador, Preliminary Exceptions, Merits, Reparations

and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 292 (Oct. 25, 2012).

[16] Gargarella, supra note 2, at 3.

[Click here for PDF]^†

By Roberto Gargarella^*

Responding to Courtney Hillebrecht, Alexandra Huneeus, with Sandra Borda, The Judicialization of Peace, 59 Harv. Int’l L.J. 279 (2018).

In their recent article, The Judicialization of Peace, Courtney Hillebrecht and Alexandra Huneeus, with the collaboration of Sandra Borda, made an impressive contribution to the discussion of the role of international courts in domestic politics. This Comment engages in  this conversation about the role of international tribunals in Colombia’s peace process, challenging some of the views presented by the authors, and suggesting some alternatives to the authors’ approach. In particular, the Comment objects to the way in which they understand the working of international tribunals, with the help of a theory of democracy that significantly differs from the one the authors seem to be assuming in their article.

Introduction

In their recent article, The Judicialization of Peace, Courtney Hillebrecht and Alexandra Huneeus, with the collaboration of Sandra Borda, made an impressive contribution to the discussion of the role of international courts in domestic politics. Their analysis is focused on the case of Colombia and the still-ongoing peace process. Local authorities launched this process in 2016, under the supervision of two international courts, namely the Inter-American Court of Human Rights (“IACtHR”) and the International Criminal Court (“ICC”). Drawing on empirical data, the Article examines the actual influence of the international courts on the construction of peace and offers “a more nuanced approach” to the question, thus challenging alternative and “too simplistic” views on the subject. In addition, the authors distinguish three different paths through which international courts engage with, and are engaged by, local actors, in the construction of peace: a “top-down” path, through which international courts let locals know about their expectations regarding the peace process; a “shadow” path, which refers to the way in which state and non-state actors negotiate “in the shadows of the law,” using international law to legitimate their policy preferences; and a “bottom-up” path, through which local actors push back, usually against courts, trying to persuade courts about their own views.

In what follows, I shall take part in this conversation about the role of international tribunals in Colombia’s peace process, challenging some of the views presented by the authors, and suggesting some alternatives to the authors’ approach. In particular, I shall object to the way in which they understand the working of international tribunals, and do so with the help of a theory of democracy that significantly differs from the one the authors seem to be assuming in their article.

In order to advance my arguments, I shall proceed as follows. First, I shall present the ideal democratic theory—a dialogic approach to democracy—that I shall use as my normative standpoint. Then, I shall examine some practical implications derived from the use of this theory, which should be relevant for recognizing some of the difficulties affecting the article on which I am commenting. Finally, I shall focus my attention on the working of the Colombian Constitutional Court during the peace process, and study it from the aforementioned dialogic perspective.

I. Why Should We Care About Deliberation? What Kind of Democratic Dialogue Could We Propose?

At one point in their article, the authors assert that “the terms of Colombia’s peace were produced through—not despite—the international courts’ ongoing deliberative engagement with the peace process” (p. 329). More specifically, in a section called “Judicialization as Deliberation,” and after having reviewed the “three main paths by which [international] courts engaged with, and were engaged by, domestic actors” (p. 294) the authors state:

These multiple modes of interaction were an important part of the four-year process that resulted in the 2016 peace agreement. They remind us that the impact of international courts does not happen in a top-down directive manner alone. Judicialization, by this telling, took the form of deliberation. The impact of the courts’ jurisdiction was to make the ongoing peace debate more infused with references to the guidance and constraints provided by international law, to make more actors at the domestic level aware of the international courts and laws, and, ultimately, to allow the manner in which these international norms were debated and understood to shift.

(p. 316).

These judgements seem to me problematic. The problems I am thinking about derive from the lack of precision they show concerning how to understand the ideas of democracy and deliberation. To recognize what I am saying, we can think about the following example. Imagine that most normative decisions about Colombia’s peace process resulted from orders, comments and suggestions coming from an empowered group of Colonels, now in charge of the three Armed Forces. Those facts would not justify us describing the “participation of the Armed Forces as deliberation.” More significantly, that kind of participation by the Armed Forces in the peace process would be in any way attractive for those of us concerned about democracy; after their intervention, the process did not become more  “deliberative.” In sum, democracy is not improved when deliberation is reduced to a procedure that is fundamentally structured by the pressures and decisions of actors that have limited democratic legitimacy

In my view, a theory of democratic dialogue—like the one I have tried to advance in my writings on the subject^[1]—does not demand that we consider all kinds of dialogic instances or examples as valuable or positive (positive, I mean, in moral, political, or legal terms). Rather, this theory encourages us to pay attention to the specific characteristics of such decision-making process and recognize whether certain basic requirements about public discussion and social inclusion are being properly considered. In addition, a dialogic theory requires us to reflect about some basic questions concerning the who, how, what, and for what purpose of the dialogue: Who are debating? Why? About what and for what reason?.

Given that I have written substantially about these issues, let me just illustrate what an adequate deliberative process would demand, through a few brief points and examples:

Equality. First, a valuable debate requires the different actors to be situated in positions of relative equality. Thus, for instance, a debate organized by the pater familias, where the authoritarian father has the “final,” unquestioned authority would not be interesting for our purposes. The same could be said regarding a deliberation between “We the People”^[2] and their representatives; and even—and more relevant for our analysis—regarding a “conversation” between different branches of power, or a “dialogue” between national and international authorities. For example, if the local judiciary decided one thing, but an international court decided the opposite with “final” authority, then it would seem odd to suggest that those institutions engaged in a “conversation”: what kind of conversation would this be, if the local authorities had no real possibility to contradict what the international court decided, or the latter had the “last say” in all matters related to human rights law?

Non-Discretional Procedures. In connection with the previous point, I would also stress that public debates should be structured in ways that are respectful to the interests of their participants; they should be based on procedures that, for example, limit the risks of manipulations or abuses by one or part of the participants. Debates should be structured around justified procedures that, among other things, prevent participants from operating discretionally. In that respect, and as an illustration, one could maintain that public hearings like those organized by different Latin American courts, in recent years, failed the proposed test: participants in those hearings never came to know, after the end of the debates, what happened with the arguments that presented at the hearings (whether they had influenced the court’s decision or were ignored altogether); which arguments mattered to the court; which were discarded and for what reasons, etc. In each case, it was for the judges to decide, with complete discretion, when and how to call for a public hearing, and what to do with the arguments that were voiced in those hearings.^[3]

The Limits of Public Dialogue. Public debates should be limited to matters of “public morality.” In other words, they should not deal with issues related to how people live or should live their own lives. In a proper democratic order, individuals should be allowed to live their own lives as they wish, without external, perfectionist intrusions.^[4] In fact, a deliberative theory assumes that each person must be “sovereign” in what concerns her own private life, in the same manner that a community should be “sovereign” concerning issues of public morality.^[5] For instance, for this theory, an ordinance as the one that was declared unconstitutional in the case Romer v. Evans,^[6] would be out of order: democratic politics should not interfere with issues related to the individual’s most intimate decisions.

All the “Potentially Affected.” Deliberative democrats assume that the chances to adopt more impartial resolutions are maximized when “all those potentially affected” take part in their discussion. For similar reasons, they assume that the risks of improper biases augment when only a few or only a small segment of society becomes in charge of making such public choices. The established legal practice in the Americas, however, does not seem to follow these criteria. For instance, in most cases, criminal law decisions (that is, decisions concerning what conducts are going to be criminalized and in what way) tend to be reserved or transferred to expert commissions, and the citizenry at large are prevented from intervening in those relevant discussions. A good illustration of this criterion appears in article 39 of Argentina’s 1994 Constitution, which establishes that “Bills referring to constitutional reform, international treaties, taxation, budget, and criminal legislation shall not originate in popular initiatives.”

Dialogue Inclusive of the Public. In line with the previous comment, I would add that public dialogue should not be restricted to a communication or exchange of arguments among national or international authorities. More specifically, a proper dialogue should always be open to “We the People” and, in particular, be sensitive to the voices of individuals and groups that we can reasonably assume find serious difficulties for having access to and influence in the decision-making process. Consequently, dialogues that were limited to public agents should not be seen, in principle, as attractive expressions of what I have been here calling a proper, possible dialogue.

Particularly, in the context of the legitimacy problems that characterize the Judiciary, both at the national and international level, and also in light of the crisis of representation that affects the political system, the prospective of a “dialogue between the branches” does not look like a particularly exciting proposal. Of course, for many of us who have been criticizing traditional forms of judicial review during decades, the emergence of institutional alternatives that, in one or another way, dilute the power of the judges’ “last word,” represents good news.^[7] However, in an institutional context like the one I suggested (which also includes profound and unjustified inequalities; a concentrated media; political campaigns that are financed by rich corporations, etc.), the perspective of promoting more “dialogue” between the branches loses much of its potential attraction: for advocates of a deliberative democracy, a dialogue between elites and high public officers produces highly unattractive results.

Genuinely Deliberative. Participants in the conversation should exchange and discuss their viewpoints, be sensitive to the others’ ideas and motivated to modify their own viewpoints when they realize that they were wrong in all or part of their arguments, or recognize that the others’ viewpoints were more persuasive. The point I want to make here has two main dimensions: one is motivational, and the other is more structural. The motivational aspect of the matter is crucial: participants need to be sensitive to “the force of the better argument,” according to Habermas’s formulation.^[8] However, here I want to stress the structural aspect of deliberation, particularly in the face of an institutional system that has been built around the idea of “checks and balances”. This system, in my view, was directed to prevent “mutual oppressions,” but not equally well-prepared for the promotion of dialogue. In fact, the Madisonian thrust behind the proposal for a system of “check and balances” was to provide each of the branches with “defensive tools”: each part of the government had to prepare to resist the foreseeable attacks coming from the other branches. As Madison put it, in Federalist 51, it was necessary to give“those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” Of course, “public debate” may also emerge from the peculiar institutional structure that was then chosen,^[9] but it seems clear to me that the system of “checks and balances” was directed at preventing or channeling “civil war,” rather than to encouraging a collective conversation of any kind.^[10]

Participation and Deliberation. For this view, instances of political participation should, in principle, be promoted and encouraged (see the point above). However, this approach also assumes that, if such instances of political participation are not preceded by politics of transparency; diffusion of information; opportunities for discussion, confrontation of viewpoints, mutual correction, etc., the entire process of consultation becomes suspect. Think, for instance, about the Brexit experience and how that process was carried out—in a hurry, without a previous and proper distribution of information, with few opportunities for public exchange of arguments, and so on.^[11] Or think about a case like that of Bolivia and the ratification process that followed the writing of the new 2009 Constitution. The Bolivian Constitution was composed of by 411 articles, and hundreds of sub-clauses, and the citizenry was invited to ratify or deny the validity of the document. What would the people’s ratification or rejection mean, in such a context? In that opportunity, people were forced to say “yes” or “no” about hundreds of different, important, and sometimes contradictory issues. In sum, there seems to be something deeply wrong in processes of popular consultation of the revised kind (that is, concerning how the deliberative process is structured), which threatens to undermine the meaning and worth of having a popular consultation.^[12]

II. Practical Implications

The previous considerations may help us understand what makes a dialogic process attractive and what makes it unworthy. More specifically, those considerations may help us recognize what kind of dialogue could result worth pursuing in the area of International Human Rights Law. In what follows, I shall briefly illustrate these claims through three examples taken from the The Judicialization of Peace article.

A. Gelman v. Uruguay

Let me begin with the example of a decision by the Inter-American Court of Human Rights (IACtHR) in Gelman v. Uruguay.^[13] The case plays an important role in the context of the article I am commenting. In fact, the authors claim that they want to offer “a more nuanced mapping of when and how international accountability courts can affect peacemaking processes” (p. 287). This fine-tuned approach would differ from alternative views that tended to “make general statements about the effects of international justice mechanisms on peace processes” (p. 287).^[14] In part, this “more nuanced approach” is advanced against what different skeptics and reformers—including, among others, Ariel Dulitzky, Jorge Contesse and myself—wrote on the subject, particularly after the Gelman v. Uruguay decision.^[15] In my view, our disagreements on the matter refer not so much to the form in which we describe the working of international tribunals, but rather to the way in which we understand the nature of those tribunals and the scope of their work.^[16] More particularly, I believe, our disagreements originate in our different approaches to democracy.

For instance, if I were required to summarize my criticisms to the Gelman decision in just one line, I would say that the decision was wrong for not being properly “nuanced,” this is to say not sufficiently sensitive to the different democratic character or pedigree of the different amnesty laws passed in Latin America in recent years.^[17] This was the main conclusion of my analysis, after revising different amnesty laws in the region, and recognizing that these diverse amnesty laws had extremely diverse democratic origins and legitimacy.^[18] Taking a dialogic or deliberative conception of democracy as my standpoint, I objected to the decision of the IACtHR after considering that given the relatively weak democratic credentials of the IACtHR, the international court should have better calibrated the strength, modes, and scopes of its intervention.

Perhaps, it is there—in how we understand and define our basic normative standpoints—where our main differences with the authors reside. For instance, in their article, the authors claim that, in the realm of transitional justice, “the reality is that international courts sometimes hinder peace, sometimes foster a better peace, and sometimes are indifferent” (p. 286). The authors seem to be saying that international courts, in general, are doing a pretty good job in the area. This general conclusion would be grounded on the fact that international courts have neither proposed “too punitive” solutions, nor became “spoilers of peace and democracy” (p. 330). Now, claims as such express normative assumptions that the authors do not—but should—clarify. Unfortunately, without a better idea of what democracy or penal moderation means, it becomes almost impossible to determine whether a certain decision or practice favors rather than undermines democracy. Similarly, the authors praise the international courts’ contribution to political deliberation. But, again, we need certain previous conceptual clarifications before concluding that international or domestic court are favoring rather than preventing the achievement of those desired goals. We need to know, for instance, how the idea of political deliberation is defined, or we need to have a clearer notion about how a deliberative democracy should work.

B. The Colombian Peace Agreement

A second, relevant example concerns the debate that was launched in Colombia around the peace agreement. That debate may become of little or no interest if the voices of all those “potentially affected” are not consulted; if participants do not participate in the dialogue from a relatively equal position; if the established procedures for debate are not structured in ways that are respectful to the different participants; if the voices of those affected are not seriously considered; etc.

And what would a democratic approach say concerning the alleged contribution of international courts to the Colombian peace process? Perhaps, one could partially agree with what the authors claim in the Article and assert, with them, that “the terms of Colombia’s peace were produced through—not despite—the international courts’ ongoing deliberative engagement with the peace process” (p. 329). But immediately then we should pose a question like the following: Why would this result be attractive from our chosen deliberative perspective? The presence of more “veto points,” more “interest groups,” or more international actors taking part of this conversation says very little about the chance of achieving more impartial decisions, or about the possibilities of improving our democratic decision-making process. As Carlos Nino once put it: “There is no guarantee that the results of this cumbersome mix of different decisions centers reflect the present, majoritarian conclusion of all the people concerned following a free and open debate.”^[19]

C. Constitutional Interpretation

Finally, the deliberative view sketched above may also be important in order to improve our thinking about questions of constitutional interpretation. For many of us, advocates of a dialogical democracy, constitutional interpretation requires an open and ongoing discussion about the meaning of the Constitution, where all the Constitution’s subjects intervene in an equal footing.^[20] This view about legal interpretation seems to greatly differ from the one that the authors take as given in their article. In their piece, legal interpretation seems to refer, not to norms that belong to all, and whose meaning needs to be defined collectively by all, over time, but rather to an extremely complex process that calls for the intervention of experts, who are supposed to help other agents (non-experts) to understand the intricacies and complexities of international law.

In a section named “Engaging the International Courts Through Legal Interpretation,” the authors claim:

International law and international courts possess a highly specialized vocabulary and language. Further, the courts have a strategic advantage in that they possess insider knowledge of their own workings, and the extent of their resources and capacity. To engage with international courts effectively, actors must gain knowledge of this language and institutional structure.

(p. 311). I tend to disagree with this approach. In contrast to it, a deliberative perspective would suggest, first, that in order to properly participate in the collective conversation about the content and meaning of the law—a conversation that fundamentally belongs to local actors—international tribunals and authorities have to recognize the limited democratic legitimacy that they have, and also the particular institutional place they occupy in this dialogue.^[21] It seems clear that, as a result of their expertise and experience, international tribunals and authorities can make an important contribution to the collective conversation about the scope, contents and limits of the law. But, again (and I am not interested in making a nationalist or parochial point about this), they have to understand that they are not supposed to come into the collective conversation so as to “teach” the rest of the participants what they do not understand about the law; or assume that their role in this conversation is to “reveal” to the rest how to rightly understand the meaning of international law (a meaning that, supposedly, would be incomprehensible to lay people).

III. The Colombian Constitutional Court

The previous considerations about deliberation, democracy, and legal interpretation may also help us to improve our analysis about the working of domestic courts in the construction of peace. In their approach to this specific topic, the authors state, for example: “International law and the [intentions of international tribunals] were used—and usurped—within the domestic political and judicial debate over peace, imbuing those debates within the narrative of law and judicialization” (p. 302). In my opinion, this claim manifests some of the difficulties that characterize the authors’ approach to the subject. The phrase suggests a view that is based, among other things, on a controversial understanding of what “the law” is and how it should be interpreted. The authors seem to be assuming that international law represents an important “portion” of the law to be applied in these circumstances, and that domestic political and judicial authorities “import” that “portion” of the law, sometimes “using” it as they should, and sometimes “usurping” it as they should not. This understanding of the relationship between international law and domestic law seems problematic, both as a description of the legal practice, and as an indication about how this entire process should work. More specifically, the authors’ description of the three paths through which the peace debate became thoroughly judicialized (“top-down,” “bottom-up,” and “shadows”) does not properly capture how non-political actors use and should use international law and international court’s decisions. In fact, the Colombian Constitutional Court (CCC) demonstrated, at least in some fundamental decisions related to the peace process, that it perfectly understood what role it was supposed to play, in the context of a dialogic democracy. Unfortunately, the authors’ approach seemed both unable to properly capture these virtuous decisions by the Court, and also incapable of recognizing the reasons and dimensions of the CCC’s failures in other similar circumstances. Let me try to illustrate and justify these claims.

According to the view that I have here advanced, “the law” is composed of local, national, and international dispositions (which include well-established legal practices) that are (as it should be) collectively interpreted and re-interpreted by the different members of the legal community, in an ongoing, unfinished process. Of course, it seems clear that international decisions appear, in many occasions, abused, misused, manipulated, or “usurped” by local authorities. However, and after acknowledging this, one should immediately recognize that domestic authorities (and the citizenry, in general) have to actively participate in the discussion about the meaning of the law that is going to be applied at the local level.

This alternative, deliberative understanding of the law helps us to better understand how the “judicialization of peace” has actually been working in Colombia, and at the same time offers useful tools for advancing a critical examination of such practice. For instance, in the article, the authors demonstrate that, in certain rulings, the CCC made an extensive use of decisions coming from international authorities, while in other occasions it did not; and also that, in occasions, the CCC quoted a certain international tribunal much more than the other, but immediately then tended to do the opposite thing without properly justifying its shifting foundations (p. 309). I understand that these oscillations by the CCC may suggest a certain misuse of “external” sources. However—I would suggest—in order to present a proper description and analysis of what the Constitutional Court has actually been doing, we need to do a different exercise, where “counting” citations of decisions by international courts would not help us much. What we need to know is how the Court processed those external antecedents; how it engaged with the arguments offered by international authorities; how it integrated certain ideas and interpretations proposed by international courts in its own reasoning; in sum how it carried on the “ongoing conversation” about the meaning, content, scope and limits of the law. Those are the relevant questions, I believe, and are also questions whose answers promise to help us improve both our description and critical evaluation of the Court’s work.

In my view, and contrary to what the authors suggest, the Colombian Constitutional Court demonstrated, in crucial occasions, to be well aware of its juridical duties and also about the nature of its duties. In particular, the CCC showed it was aware of the fact that it was participating in an ongoing collective conversation about the meaning of the law—a conversation that includes many actors and voices (coming from above and below) different from the same CCC. Moreover, the Court recognized that public decisions had to be taken in a deliberative manner, and that its own decisions had to honor this objective. Many of the Court’s most relevant decisions confirm those assumptions and show its commitment to the ideals, forms and procedural requirements of a deliberative democracy.^[22]

In what specifically concerns the peace process, some of the Court’s most recent decisions illustrate how important this deliberative understanding of the law was, for the same Court; and when and how the Court failed in the application of that understanding.

Take, for instance, the decision made by the Court in May 2017, when it examined the norm allowing the government to “fast-track” laws related to the 2016 Peace Agreement (Constitutional Amendment 1, 2016).^[23] The government had promoted these procedural reforms—the “fast track”—in order to accelerate the implementation of the Agreement (and particularly the amnesty law that the members of the guerrilla demanded). Through its decision on the case, the tribunal considered that two basic parts of the “fast track” mechanism created by Congress were unconstitutional. According to one of the objected clauses, all changes to each of the laws developing different aspects of the Agreement had to be approved by the government before coming to a congressional vote. According to the second objected clause, Congress could only vote to approve or deny the law, implementing the peace process without the possibility of debating and voting on each of the articles individually. For the Court, implementing those two clauses would have implied replacing the Constitution by altering the deliberative and decision-making powers of Congress.^[24] In the words of the President of the Constitutional Court at that time, Luis Guillermo Guerrero, the ruling was not aimed at undermining the force of the Peace Agreement, but rather to “open up spaces for democratic deliberation.”^[25]

From a democratic perspective, the Court’s strict scrutiny of the “fast-track” law seemed totally justifiable: the government needed to show that it was doing its very best in order to “build democratic legitimacy,” but instead showed that it was willing and ready to circumvent the constitutional and procedural requirements of democratic deliberation. The Colombian Constitutional Court reasonably resisted the government’s ill-fated initiative, and in that way reaffirmed its commitment to deliberative democracy.

This interesting judgment of the Court contrasts with another, more recent decision, where the tribunal, in my view, failed to understand what the same deliberative concerns that it had employed once and again before, required it to do, in the new case.^[26] On that occasion, the Court upheld a Congress-approved legislation, which established that the Peace Agreement between the government and the FARC could not be amended for the next twelve years (Constitutional Amendment 2, 2017). This is to say, the following three governments would be unable to modify approved parts of the accord. The short-term purpose of the political initiative was obvious: it was directed to shield the Agreement from potential changes to be introduced by the incoming government. According to the norm that was upheld on that occasion, “institutions and authorities of the state have the obligation to comply with what is established in the final accord in good faith . . . until the end of three complete presidential periods following the signing.” For the Court, that article incorporated a “principle of stability and security that is deferential to the purposes of the Agreement.” Unfortunately, on this occasion, and against what its own legal discourse usually suggested, the Court limited rather than encouraged democratic deliberation: it accepted an unreasonable limit to the collective conversation about how to deal with one of the most important and serious problems in Colombia’s history. Fearing that the incoming government would promote a political decision (about the peace agreement) that the Court anticipated as mistaken, the Court validated the decision by (now ex-) President Santos to prevent the coming generations from continuing to reflect about a difficult matter that affects the life of the vast majority of Colombians.

Conclusion

In this Comment, I revised some of the arguments that appear in The Judicialization of Peace, and offered some alternatives to them. In particular, I suggested that the authors’ analysis would be enriched if they clarified their own views about democracy, deliberation, and constitutional interpretation. I also offered some ideas about what a deliberative theory could look like and suggested that this alternative approach could help us to better explain and critically evaluate the development of the Colombian peace process and the intervention of international and domestic tribunals.

†   Suggested citation: Roberto Gargarella, Some Reservations Concerning the Judicialization of Peace, 59 Harv. Int’l L.J. Comment (Feb. 3, 2019), https://harvardilj.org/2019/02/reservations_peace/

*   Professor at the University of Buenos Aires and the University Torcuato di Tella. Senior Researcher at the National Research Council, CONICET (Argentina).

[1]   See, e.g., Roberto Gargarella, Deliberative Democracy, Dialogic Justice and the Promise of Social and Economic Rights, in Social and Economic Rights in Theory And Practice 105 (Helena Alviar et al., eds. 2014); see also Roberto Gargarella, Full Representation, Deliberation, and Impartiality, in Deliberative Democracy 260 (Jon Elster, ed., 1998).

[2]   U.S. Const., pmbl.

[3]   See, e.g., Miguel Benedetti & Jimena Saenz, Las Audiencias Publicas Ante La Corte Suprema [Public Hearings before the Supreme Court] 280–81 (2016) (Arg.).

[4] Carlos Nino, The Ethics of Human Rights (1991).

[5]   For a general analysis on the subject see, for example, id.

[6]   517 U.S. 620 (1996) (invalidating a state constitutional amendment passed in Colorado, which prevented protected status based upon homosexuality or bisexuality).

[7]   See, e.g., Mark Tushnet, Weak Courts, Strong Rights (2008); Jeremy Waldron, Law and Disagreement (1999).

[8]   See 1 Jurgen Habermas, Theory of Communicative Action, 24, 25, 28, 36, 42 (1984).

[9]        See generally Cass Sunstein, The Partial Constitution (1993).

[10]     I have defended this view, for example, in Roberto Gargarella, We the People Outside of the Constitution: The Dialogic Model of Constitutionalism and the System of Checks and Balances, 67 Current Legal Probs. 1, 22–23 (2014).

[11]      See Thomas Colignatus, The Brexit Referendum Question Was Flawed In Its Design, LSE Brexit (May 17, 2017),  http://blogs.lse.ac.uk/brexit/2017/05/17/the-brexit-referendum-question-was-flawed-in-its-design/ [https://perma.cc/V4GM-7WBA].

[12]      See European Union Observation Mission, Final Report on Bolivian Constitutional Referenedum of January 25, 2009, at 35 (2009), http://eeas.europa.eu/archives/eueom/missions/2009/bolivia/pdf/eueom_bolivia_2009_final_report_en.pdf [https://perma.cc/EX5G-WQL8].

[13]      Gelman v. Uruguay, Merits and Reparations, Judgment, Int-Am. Ct. H.R. (ser. C) No. 221 (Feb. 24, 2011).

[14]     Seemingly, for these “simplistic” views, international courts would constrain national policy-making “in a top down manner” (p. 286), and push for “punitive” solutions, in ways that spoiled “peace and democracy” (p. 330). In the realm of transitional justice, the authors claim, “the reality is that international courts sometimes hinder peace, sometimes foster a better peace, and sometimes are indifferent” (p. 286).

[15]      For instance, right before presenting their “more nuanced approach,” the authors quote Dulitzky’s and Contesse’s writings, and their suggestions saying that the IACtHR should become more deferential to national actors (p. 285). See, e.g., Jorge Contesse, Contestation and Deference in the Inter-American Human Rights System, 79 L. & Contemp. Probs. 123 (2016); see also Ariel Dulitsky, An Inter-American Constitutional Court?, 50 Tex. Int’l L.J. 45 (2015); Ariel Dulitzky, The Inter-American Human Rights System Fifty Years Later: Time for Changes, 127 Quebec J. Int’l L., (Special Edition) 127 (2011). In addition, they quote my own criticisms to the Gelman decision, when I claimed that the IACtHR’s decision was “not sufficiently respectful of democracy” (p. 285).

[16]      In fact, Ariel Dulitzky and Jorge Contesse have advanced very moderated and well-balanced criticisms to the functioning of international courts. In other words, I would not consider their analyses to be “non-nuanced.”

[17]      Actually, this was exactly what I wrote in the more complete piece I presented on the subject. See Roberto Gargarella, No Place for Popular Sovereignty. Democracy, Rights, and Punishment in Gelman v. Uruguay, 2013 SELA (Seminario Latinoamericano De Teoría Constitucional Y Política [Latin American Seminar On Constitutional And Political Theory]) Paper, 3, 16. In that opportunity, I stated: “the [IACtHR] assumed a vision of democracy that was not only based on distrust of the citizenry but moreover . . . completely insensitive to relevant nuances as regards the robustness or legitimacy of popular decision-making.” Id. at 37. Earlier in the paper, I asserted: “the approach adopted by the IACtHR in Gelman belied a schematic structure lacking any nuance.” Id. at 15. In other words, rather than condemning the overall work of the IACtHR, I basically challenged one decision by the Court for not having a “more nuanced approach” in relation to democracy and human rights.

[18]      More specifically, I complained about the tribunal’s resistance to differentiate between the amnesty law that had been enacted in Uruguay, after a long and profoundly deliberative, democratic process, and other amnesties conceded in the region out of non-democratic or hardly democratic decision-making processes. See id. at 15.  In my article, I distinguished four main cases, related to four main examples: 1) the self-amnesty proclaimed by the National Reorganization Process in Argentina (Argentina’s last dictatorship) before surrendering power; 2) the self-amnesty proclaimed by the regime of Alberto Fujimori in Peru following the massacre at Barrios Altos, and after he had shut down the democratic Congress; 3) the pardon laws passed by the democratic government under President Raúl Alfonsín in Argentina putting an end to the trials of persons responsible for the serious human rights violations that took place in Argentina starting in 1976; and 4) the Expiry Law passed in Uruguay and reaffirmed in two instances by popular vote. See id. 7–11.

[19]      Carlos Santiago Nino, The Constitution of Deliberative Democracy 166 (1996).

[20]     I have advanced this view, for example, in Roberto Gargarella, La interpretación y el diálogo democrático [Interpretation and Democratic Dialogue], Revista Del Centro De Estudios Constitucionales [Journal. Ctr. for Const. Stud.], enero – junio, 2017, at 169 (Mex.)

[21]      A crucial point emerges, but one which I cannot properly address within the context of this paper. The discussion concerns the question about who should be allowed to participate in these particular conversations. My intuition is that the Habermasian notion of “those potentially affected” would mainly, although not only, refer to local participants, who have a special stake in what concerns the violation of rights of local authorities. See Habermas, supra note 8.

[22]     See Leonardo Garcia Jaramillo, Constitucionalismo Deliberativo [Deliberative Constitutionalism] (2015). See generally Roberto Gargarella, Latin American Constitutionalism (2013), Roberto Gargarella, The Legal Foundations of Inequality (2010).

[23]     Corte Constitucional [C.C.] [Constitutional Court], mayo 17, 2017, Sentencia C-332/17 (Colom.), http://www.corteconstitucional.gov.co/relatoria/2017/C-332-17.htm [https://perma.cc/G9Q7-EYL7?type=image] (examining the constitutional status of the “fast-track” mechanism created by Congress in order to accelerate the implementation of the peace agreement).

[24]     Juanita León, Las dos caras del golpe al fast track [The two sides of the blow to Fast Track], La Silla Vacía (May 18, 2017) (Colom.), https://lasillavacia.com/historia/las-dos-caras-del-golpe-al-fast-track-60989 [https://perma.cc/XKF7-VGWF].

[25]     Corte Constitucional [C.C.] [Constitutional Court], octubre 11, 2017, Sentencia C-630/17 (Colom.), http://www.corteconstitucional.gov.co/relatoria/2017/C-630-17.htm [https://perma.cc/NC43-3M87?type=image] (referring to the purpose of fast track authority) (translated from “abriendo espacios para la deliberación democrática”).

[26]     See id. (examining the constitutional status of a law shielding the peace agreement from political reforms in the following twelve years).