The El Sistema law is the second law in the fast-track package, the first one being the amnesty law for minor offences committed during armed conflict, which was approved by Colombia’s Congress on 6 December 2016, despite strong opposition of the right-wing Democratic Center party. The amnesty law was essential in securing demobilization of FARC by guaranteeing amnesties for political crimes (such as rebellion or sedition), while the El Sistema law addresses the most contentions part of the peace deal, tackling questions of justice and reparations (section 5 of the deal and item 5 of the negotiations agenda).
Item 5 of the peace deal agenda presented particular challenges, as FARC initially insisted on the idea of collective, rather than individual, responsibility for crimes committed during the protracted civil war. It was possible to reach an agreement relying on the idea of ‘justice for all’ rather than ‘justice for FARC’, meaning that all parties to the conflict, including the army, which holds prominent position in Colombian governing circles, agreed to submit themselves to the jurisdiction of a future paytm database tribunal. As a result, the peace deal envisages the creation of a holistic justice system aimed at unifying Colombia’s scattered transitional justice landscape. The emphasis is not so much on retribution but rather on establishing the truth about the past, creating mechanisms for reparations for victims and guarantees of non-repetition. The El Sistema law brings this system to life by approving the creation of its various components: the Truth Commission, the Unit for the Search of Missing Persons, the Special Jurisdiction for Peace (SJP), and other measures aimed at reparation and non-repetition.
Both restorative and retributive aspects as it seeks to achieve justice not only through penalties but also through repairing damage caused to victims affected by the conflict (Article 13). This is both innovative and controversial. In practice, such ‘dual’ focus of the system entails at least three consequences.
First, the SJP – the judicial system that will have primary jurisdiction over all cases arising out of the conflict – will have to adopt a policy of prioritization in its work. It is logistically impossible to prosecute all those responsible within the limited timeframe allotted to the SJP, which the law sets at ten years with a five-year extension period (Article 15). The Office of the Prosecutor, presently tasked with collecting all the relevant material to pass on to the SJP, is working on grouping potential cases with reference to their gravity and symbolic value. The first level of prioritization will happen on the basis of the types of crimes. There are currently seven themes singled out for further prosecution at the SJP: sexual violence, false positives (killings of civilians by the army with the purpose of falsely presenting them as guerilla fighters), enforced disappearances, mass murders, displacements, recruitment of children, and environmental crimes.