Introduction
The 2016 Peace Agreement between the Colombian Government and the guerrillas of the Revolutionary Armed Forces of Colombia - People’s Army (“FARC-EP” in Spanish) set in motion a Transitional Justice (“TJ”) process. A key feature of this TJ process was the establishment of the Special Jurisdiction for Peace (“SJP” or “JEP” in Spanish), a tribunal tasked with investigating, prosecuting and adjudicating the most serious crimes committed during more than six decades of armed conflict. The SJP opened its doors in 2018 and must fulfil its mandate within 15 years, with the possibility of a further 5-year extension. The SJP seeks to achieve accountability for the most serious crimes while safeguarding victims’ rights.
However, the scale of the atrocities poses a challenge for the SJP in dispensing timely and meaningful results in the time afforded because thousands of crimes have been committed, and more than 10 million people have been victimized in the context of the armed conflict. To address this challenge, the Colombian Government adopted a legal framework empowering the SJP’s Appellate Section to issue “interpretative judgements” (“Sentencias Interpretativas” or “SENIT” in Spanish). The primary purpose of interpretative judgments is “to ensure the unity of the interpretation of the law and guarantee legal certainty” within the Colombian transitional justice legal framework. In the past, Palancia-Tejedor and I have characterized the SJP’s interpretative judgments as a mechanism to answer abstract legal questions, similar to what international law tribunals do through "advisory opinions." Still, unlike advisory opinions, the SJP’s interpretative judgments are legally binding.
On April 3, 2025, I had the opportunity to make a presentation on the SJP’s interpretative judgments at McGill University’s Faculty of Law. In that scenario, I engaged in an exchange on the challenges of interpretative judgments with Alexandra Sandoval Mantilla, a SJP judge and, at the time, a visiting fellow with the McGill Centre for Human Rights and Legal Pluralism. Judge Sandoval-Mantilla shed light on the complexity of executing some of the orders issued in interpretative judgments. In particular, she highlighted the practical challenges to implement those orders in rural areas of Colombia, where many victims and alleged perpetrators live under continuing military confrontations among multiple armed groups that are disputing the territorial control of those areas. She underscored how difficult it can be to notify and get victims to participate in a proceeding to grant a legal benefit to a former combatant. Below, I will share further details about her valuable input.
Drawing on the nine interpretative judgements issued to date by the SJP, I assert that the SJP has made considerable use of this legal tool to meet the challenge of dispensing timely justice head-on. As a legal innovation in the Colombian TJ process, this framework is sui generis and warrants consideration and scrutiny, not least because a similar framework could be a valuable feature to include in other TJ processes that face similar challenges. In sum, I argue that interpretative judgements are a legal creation of the Colombian TJ process that represents a specific contribution to the TJ legal framework more broadly. Concretely, interpretative judgments can be conceived as a tool that can help expand our reflection on how to realize the TJ’s pillar of justice more effectively.
To provide some brief insights into the SJP’s interpretative judgments, I have divided this blog post into four broad sections. First, I will explain the normative framework of interpretative judgment, including its legal foundation, objectives, and principles. Second, I will describe the nine interpretative judgments in general terms and will discuss some of their contributions to the Colombian TJ process. Third, I will examine the scrutiny and questioning of interpretative judgments for allegedly exceeding the TJ process's legal framework, for example, by introducing additional requirements for certain legal proceedings or expanding the scope of alleged perpetrators that the SJP can investigate. And, fourth, I will share some reflections as a conclusion.
The Special Jurisdiction for Peace’s Legal foundations, objectives, and principles governing the use of interpretative judgments
1.1 Legal foundations
The legal basis for issuing interpretative judgments is enshrined in Article 59 of Law 1922 of 2018 (also known as the SJP’s procedural law), which provides that: “The Appellate Section, to ensure the unity of legal interpretation and guarantee legal certainty, shall adopt interpretative judgments.” These rulings are binding and seek to: a) clarify the meaning or scope of a legal provision, b) define the interpretation of a legal provision, c) carry out early unifications of jurisprudence, and d) clarify gaps or define the criteria for SJP’s normative cohesiveness. In tandem with the prior legal provision, Article 25 of Law 1957 of 2019 (also known as the SJP’s statutory law) establishes that the SJP’s Appellate Section is the ultimate interpreter of the legal framework governing the SJP’s legal functions.
Pursuant to Law 1922 of 2018, interpretative judgments must be consistent with the Constitutional Court's jurisprudential precedents on a given legal issue. Interpretative judgments may be requested by the SJP's Chambers of Justice, its Sections, or the Investigation and Prosecution Unit. Likewise, the Appellate Section may adopt interpretative judgments motu proprio within its jurisdictional competence when resolving appeals, acting as the SJP's hermeneutical body of closure. Importantly, no appeals are admissible against interpretative judgments.
Through judgment SU-388 of 2023, the Colombian Constitutional Court ratified the binding nature of interpretative judgments in the following terms:
123. In light of the above, the [Constitutional] Court considers that the Special Jurisdiction's Interpretative judgements (Senit) issued by the Appellate Section, given their particular nature and characteristics, are binding on the other bodies of said Special Jurisdiction. Consequently, they cannot ignore the rulings, much less unapplied them by means of an unconstitutionality exception, since, by virtue of the legal functions assigned to it by Articles 25 of Statutory Law 1957 of 2019 and 59 of Law 1922 of 2018, the normative interpretations of the Appellate Section prevail over those of the other Chambers, Sections, and other departments of the Special Jurisdiction. This in no way means that the rulings, which are exclusively general, impersonal, and abstract in nature, cannot be challenged through any judicial mechanism. As will be seen later, such judgments are susceptible to being questioned through the public action of unconstitutionality, provided that the requirements provided for this purpose are met - infra numerals 139 to 145.
Therefore, the Colombian State has empowered the SJP with a robust legal foundation to issue interpretative judgments, with a strong presumption of legality and constitutionality that can be questioned only under the high bar of constitutional challenges.
1.2 Objectives
The SJP’s Appellate Section has indicated that the objectives of interpretative judgments can be summarized into three: a) to ensure the cohesiveness of legal interpretation, b) to guarantee legal certainty, and c) to ensure equality in the application of the law. Regarding the first objective of cohesiveness of legal interpretation, the Appellate Section has noted that “[t]he cohesive interpretation of the legal system prevents the understanding of the sources from being fragmented, dispersed, and contradictory, lacking any common pattern or harmony between the different Chambers and Sections.” Specifically, the systematic interpretation carried out by the Appellate Section through interpretative judgments can foster a common understanding of transitional law, guiding the jurisdictional work of the SJP’s judicial bodies.
Fulfilling the first objective paves the way for achieving the second objective of guaranteeing legal certainty. This principle focuses on how a uniform interpretation of the law allows victims, alleged perpetrators, other interveners, and the bodies that compose the SJP to have clarity about the rules that govern their actions, anticipate their consequences, and be able to proceed accordingly. This, in turn, guarantees compliance with the third objective of avoiding unequal interpretations of the law, thereby reinforcing respect for the notions of equality, legal certainty, and legitimate trust, and preventing or minimizing the risk of arbitrary decisions.
1.3 Principles
In the Colombian context, the notion of interpretative judgment is conceived as a sui generis institution of its TJ process. It is therefore not a legal institution present within the functions of the Colombian ordinary justice system. In this sense, Interpretative judgments are based on some principles that characterize their sui generis nature: 1) the principle of strict temporality, 2) the principle of organic nature, and 3) the principle of normative comprehensiveness.
The principle of strict temporality refers to the fact that the SJP, as an institution that administers justice on a transitional basis in accordance with Article 5 of Legislative Act 01 (constitutional amendment 01) of 2017, has 15 years to complete its mandate, which can be extended through congressional approval by an additional 5 years. In other words, the SJP may have a maximum time limit of 20 years to fulfill its mandate. It is noteworthy that the Stability and Effectiveness Section, which will be established after the SJP ends its judicial functions, is not subject to this time limit, as its work can be extended indefinitely “to ensure effective compliance with the orders issued by the Jurisdiction.” The aforementioned SJP’s timeframe for completing its task is in accordance with the Constitutional Court's ruling that declared the conditional constitutionality of Article 15 of Legislative Act 01 of 2017, by which the SJP’s mandate duration was established.
The principle of strict temporality further implies some level of uniformity in the understanding of the law. In interpretative judgments 1 of 2019, the SJP’s Appellate Section affirmed that the “transitional law must be subject to a uniform interpretation from the outset of the actions of [the SJP’s] different bodies, so that a reasonable and necessary margin and equal application of the law are established for those [alleged perpetrators] who appear before the SJP and victims.” Hence, the legal institution of interpretative judgment plays an essential role in promptly providing that interpretation, without having to wait, as in ordinary jurisdiction, for it to be consolidated over time through case-by-case judicial decisions. Interpretative judgments aim to establish, from the outset, a common understanding of the principles and foundations of transitional law, enabling Chambers and Sections to consider these core precepts in advancing the purposes of the SJP.
The principle of strict temporality also influences the principle of organic nature of transitional justice, as there are institutional deadlines for certain SJP’s judicial bodies to complete their judicial tasks sequentially. An example of this is the SJP’s Investigative and Prosecutorial Unit, which has a 10-year time limit to fulfill its functions. In the case of the Chambers and Sections, there is no such precise time limit, which would allow them to fulfill their duties within a maximum period of 20 years. The institutional design of the SJP allows this institution's jurisdictional activities to vary over time. This means that once a particular phase has been completed, it is necessary to reform certain normative understandings and working practices of the respective Chambers and Sections. For instance, due to the accumulation of requests for transitional justice benefits addressed to the Chambers for Amnesty and Pardon and the Chamber for Definition of Legal Situations, it is reasonable that initially the mobility of employees from the SJP’s Sections to the Chambers of Justice be authorized to support the Chambers in their work, so it is also reasonable that later the mobility be carried out in the opposite direction, always safeguarding the due process guarantees.
The potential for changes in work structure and functional evolution must be incorporated into the visions of SJP’s various departments and bodies, in accordance with the Constitution and the law. In this context, interpretative judgments play a crucial role in guiding those organic changes and their evolution. Interpretative judgments can be conceived as channels that promote this institutional transformation and/or readjustment, clarify how this transformation should occur, and provide input and guidelines to the Chambers and Sections to achieve the institutional adjustment required at a given time.
Indeed, interpretative judgments play an essential role in achieving the goals of transitional justice, as these rulings enable flexibility and dynamism, enabling the organic and organizational foundations of jurisdictional practices to adapt to current circumstances. Finally, interpretative judgments are crucial for providing practical, operational, and helpful guidelines to materialize the conceptual approaches established in the transitional justice legal framework and thereby contribute to the goals of the SJP as an institution that dispenses justice on a transitional basis.
The principle of normative comprehensiveness seeks to define the criteria for the SJP to bring together the diverse and complex legal frameworks it can rely on to dispense justice. Pursuant to Articles 5 and 22 of Legislative Act 01 (constitutional amendment 01) of 2017, the SJP has a legal framework composed of the following normative bodies: i) the Colombian Penal Code, ii) International Human Rights Law, iii) International Humanitarian Law, and iv) International Criminal Law. Article 72 of Law 1922 of 2018 contains a residual regulation clause for proceedings before the SJP, which refers to the General and Criminal Procedural Codes as normative sources for the SJP, among other procedural and substantive provisions contained in normative bodies, such as Law 1922 of 2018.
Although they may share some common purposes, the existence of this variety of normative bodies or sources that operate simultaneously can lead to divergent interpretations and apparent contradictions. This justifies the existence and use of a legal tool such as interpretative judgments to guarantee “a space for hermeneutical articulation that provides this universe [of normative sources] with certain reasonable coherence.” Without a legal institution, such as interpretative judgments, that harmonizes these different normative bodies, the SJP could face a situation of “equally diverse and discordant solutions [to legal questions] within the Jurisdiction.” In fact, the existence of the interpretative judgment institution responds to what is required by the Constitutional Court in the sense that the SJP “[…] must assume a task of interpretation and application of the law that demands harmony between the domestic and international order.”
The principle of normative comprehensiveness enables the SJP's Appellate Section, through interpretative judgments, to engage in hermeneutical harmonization to establish or specify “the appropriate and predictable rule for each situation.” This work of harmonization contributes to guaranteeing the notion of legal certainty and stabilizing peace efforts by developing a coherent understanding of norms, thereby reducing legal gaps and defining the scope of normative cross-referencing. Interpretative judgments, therefore, can specify the extent to which the varied normative bodies are compatible with the purposes of TJ and define how discrepancies between them can be addressed or resolved. In short, taking into account the diversity of domestic and international legal frameworks that converge for the SJP to fulfill its judicial responsibilities, interpretative judgments can be conceived as an essential tool to achieve the consolidation of "a common understanding of concepts and operational frameworks aimed at making the [judicial] transitional law structure effective.”
2. The Special Jurisdiction for Peace’s Interpretative Judgments and Their Contributions to the Colombian Transitional Justice Process
The SJP’s Appellate Section has issued nine Interpretative judgments so far to tackle a variety of legal issues. In this section, I do not attempt to undertake an in-depth analysis of each interpretative judgment; instead, I seek to provide a broad or general picture of the variety and complexity of legal questions that interpretative judgments intend to examine.
Interpretative judgment 1 of 2019 addresses the issues of provisional legal benefits to former combatants and/or perpetrators, the regime of conditionality or limitations that former combatants or perpetrators must observe to continue enjoying the TJ’s legal benefits, and victims’ participation in those proceedings. This interpretative judgment is significant because, instead of hearing many cases about how victims can participate in some SJP’s judicial proceedings to grant legal benefits to former combatants, the SJP’s Appellate Section issued this ruling to offer guidance to all the SJP’s Chambers and Sections on how victims’ participation could be guaranteed. Interpretative judgment 2 of 2019 focuses on clarifying the SJP’s judicial bodies’ jurisdictional competence to decide, review, and oversee provisional legal benefits for former members and former collaborators of the FARC-EP. Interpretative judgment 3 of 2022 was divided into two rulings. The first ruling examines the legal regime for notifications, communications, and appeals regarding proceedings to assume cognizance of macro-cases, the determination of facts and the actions of macro-criminality in the context of the armed conflict, and the issuance of “resolutions of conclusions” to advance with criminal accountability proceedings against those most responsible for crimes committed in the context of the armed conflict. Along the same lines, the second ruling focuses on the legal regime for notification, communication, and appeal in ordinary proceedings before the SJP.
Interpretative judgment 4 of 2023 tackles concerns about the SJP’s Chambers and Sections’ jurisdictional competence to decide complaints alleging that former combatants and/or perpetrators are not complying with the conditionality regime they must observe to continue enjoying TJ’s legal benefits. Interpretative judgment 5 of 2023 focuses on the SJP’s Chamber for Acknowledgment of Truth, Responsibility and Determination of Facts and Conduct, and the SJP’s Chamber for the Definition of Legal Situations’ decisions on negative selection of former perpetrators, the appeal of those decisions, the application of article 129 of Law 1957 of 2019 (on TJ’s sanctions to former perpetrators for less than 5 years), and the strict regime of conditionality that former perpetrators must observe to continue enjoying TJ’s legal benefits. Interpretative judgment 6 of 2023 seeks to clarify the TJ’s legal framework for the immediate application of the Colombian Constitutional Court’s judgment C-111 of 2023. Concretely, the SJP’s Appellate Section offered guidance to all Chambers and Sections on how to observe or comply with the above-mentioned Constitutional Court’s ruling that declared the unconstitutionality of an article of the SJP’s rules of proceedings (Law 1922 of 2018) that dealt with the competence of SJP’s bodies to hear legal requests for protection of constitutional rights (“acciones de tutela” in Spanish).
Interpretative judgment 7 of 2023 examines the issue regarding the possibility of the Director of the SJP’s Investigation and Prosecution Unit being subject to impediments and recusals in the context of adversarial proceedings. In this vein, the ruling analyzes which authority is competent to decide on impediments and recusals of the Investigation and Prosecution Unit’s Director and prosecutors. This interpretative judgment also establishes the procedure to be followed in analyzing potential impediments and recusal. On April 30, 2025, the SJP’s Appellate Section issued interpretative judgment 8, spelling out some key elements for the implementation of restorative measures in favour of victims of the Colombian armed conflict. In particular, the Appellate Section underscores three aspects I consider crucial: 1) the importance that the Colombian State supports the implementation of restorative measures, so that perpetrators can participate in programs and projects intended to offer adequate reparations to victims, 2) that restorative measures that former perpetrators carry out to satisfy victims’ rights must be in accordance with the type of harm caused, and 3) victims’ participation before the SJP is significant for this tribunal to understand the scope or magnitude of the harm caused. And on September 24, 2025, the SJP’s Appellate Section issued interpretative judgment 9, which examines complex questions related to the application of the transitional benefits of the waiver of criminal prosecution and the substitution of criminal sanctions for former perpetrators within the SJP's jurisdiction.
Interpretative judgments, as discussed above, seek to provide a harmonious interpretation and understanding of the complex legal framework that guides the SJP’s work, which includes Colombian Criminal Law, Colombian Constitutional Law, International Human Rights Law, International Humanitarian Law, and International Criminal Law. The fact that the SJP’s Appellate Section can provide broad understandings on how these multiple legal frameworks intersect, complement, and strengthen each other is a meaningful contribution in itself, which helps avoid confusion and contradictory responses by each SJP’s Chamber or Section. But there are concrete contributions that go beyond this general one. It is therefore important to refer to or illustrate some of the legal implications or applications of interpretative judgments. In fact, through interpretative judgment 2 of 2019, the Appellate Section clarified how the SJP’s Review Section and the Chamber for Amnesty and Pardon should carry out the review and supervision of former combatants’ legal benefit of conditional release.
Additionally, the SJP’s Appellate Section, through interpretative judgment 2, established that before granting benefits such as amnesty, those former combatants requesting that benefit must be encouraged to contribute to the truth by completing a form designed to collect information related to situations that occurred in the context of the armed conflict (form F1). The Appellate Section designed such a form and attached it to the interpretative judgment 1 of 2019. The truth contribution can be realized through interviews or similar tools in which former combatants provide general and comprehensive information about themselves, the crimes attributed to them, the events involving third parties, and the macro-criminality in which they participated.
In the context of a resolution resolving an appeal (Resolution TP-SA No. 873, 2021), in July 2021, the Appellate Section emphasized the notion of the centrality of the victims and the importance of taking them into account in the judicial proceedings carried out by the SJP, in line with what was expressed in interpretative judgment 1 of 2019. The SJP’s Appellate Section affirmed that “[n]o one knows better [than the victims] the extent of the damage caused or remembers the crime in such detail.”
As mentioned above, through interpretative judgment 8, the SJP’s Appellate Section provided critical guidance on the nature, purpose, relevance, and centrality of victims when judgments on restorative measures are issued and implemented. This interpretative judgment discusses one of the central components of the Colombian TJ process: the reparations that perpetrators must offer victims through restorative measures. The relevance of this interpretative judgement can be seen in the restorative measures contained in the first two merit decisions to convict and hold accountable members of the FARC-EP and the Colombian Army.
Consequently, interpretative judgments have contributed to facilitating a harmonious understanding of the transitional justice legal framework, thereby clarifying the interpretation and application of the law on some crucial aspects to resolve some sticking points that could have hindered the work of the SJP’s Chambers, Sections, and other departments.
3. Scrutinizing the Special Jurisdiction for Peace’s Interpretative Judgment function
Interpretative judgments can also present challenges for the SJP's judicial work. Relying on the notion of transitional justice’s broad goals as a basis for adding requirements to the procedures for granting transitional justice legal benefits can have the practical effect of prolonging already tedious proceedings, thereby increasing the workload of chambers and Sections. This would be contrary to the notion of issuing prompt decisions that can strengthen the trust of potential recipients of legal benefits in the Peace Agreement and the transitional justice process itself. The SJP’s Appellate Section thus faces the challenge to ensure that interpretative judgments take into account not only the purposes of transitional justice in a broad sense, but also the practical implications of these rulings on the workload and workflow of the SJP’s judicial bodies, so as not to impose burdens or requirements that de facto end up making the proceedings cumbersome and protracted.
Victims and victims’ organizations have criticized the SJP’s interpretative judgments. As a case in point, interpretative judgment 3 of 2022 establishes that decisions on the opening of macro-cases must be notified to the Colombian national inspector general’s office, but not necessarily to victims. This judgment also indicates that, unlike requests for appeals of legal decisions, the SJP is not required to respond to general observations or requests submitted to it, as these are not necessarily binding legal recourse. Victims protested this interpretative judgment, arguing that it would limit their access to justice and the publicity of the SJP’s decisions. Victims then submitted a legal request for protection of constitutional rights to have the interpretative judgment revoked. Nonetheless, in 2023, the Colombian Constitutional Court dismissed such a legal challenge.
In the context of interpretative judgment 5 in 2023, the SJP determined that the Chamber for the Definition of Legal Situations can investigate “non-determining perpetrators,” meaning that this Chamber should not focus exclusively on investigating those most responsible, but could also investigate low-rank perpetrators. The constitutionality of that interpretative judgment was questioned before the Colombian Constitutional Court, on the argument that the SJP should focus on those most responsible, or else it could distract itself from its primary task of holding accountable the most responsible perpetrators. Nevertheless, the Colombian Constitutional Court dismissed the case, considering, among others, that the litigant’s argument was too speculative.
Still, a new constitutional challenge was launched in 2025 by a group of individuals that included two chief government negotiators of the 2016 Peace Agreement. According to the former officials' complaint, interpretative judgment 5 included a provision called "second-order selection authority," which authorizes the Chamber for the Definition of Legal Situations to select those considered most responsible for crimes committed in the context of the armed conflict and subject them to adversarial trials by the SJP Investigative and Prosecutorial Unit, provided that they have not provided sufficient information about the truth or have not acknowledged their participation in the conflict. The plaintiffs argued that such a selection category was not established in the SJP’s legal framework, and that its creation via an interpretative judgment would violate the principle of legality and due process guarantees, and would make the SJP’s criminal investigative mandate more challenging and cumbersome. The Colombian Constitutional Court partially admitted this constitutional challenge against interpretative judgment 5. On October 24, 2025, the Colombian Constitutional Court held a public hearing to hear the positions of an important group of stakeholders on the constitutionality of this interpretative judgment. DEJUSTICIA, a well-respected centre of socio-legal studies in Colombia, argued that interpretative judgment 5 should be declared unconstitutional. For its part, the SJP's President defended the constitutionality of interpretative judgment 5. The Constitutional Court’s decision on this matter will be of utmost importance to define the scope of criminal prosecution that the SJP must prioritize and focus its efforts on.
In my conversation with judge Sandoval-Montilla, on April 3, 2025, she expressed how sometimes the exercise of asking alleged perpetrators to fill out a form in which they reiterate the crimes they committed and express regrets for those crimes to the victims can be a performative act because Chambers, such as the Chamber for amnesty and pardon, do not have the capacity to corroborate if what a given allege perpetrator has expressed is true and if the victims are satisfied by this alleged perpetrator’s truth contribution.
Other SJP’s judges have expressed that interpretative judgments can be seen as a tool for the SJP to elaborate criteria “to effectively comply with the purpose of transitional justice,” and to adjust its actions to “its evolving challenges.” In fact, they have argued that interpretative judgments “will also allow the JEP to have a self-critical and reflective mechanism for continuous improvement and adjustment to the constant challenges required by the application of transitional justice in Colombia.”
Those criticisms and recommendations are valid, and I believe the SJP’s Appellate Section must take note of them and reflect on how to address those concerns and suggestions. One way the Appellate Section could tackle those criticisms is by holding public hearings, as part of its interpretative judgment proceedings, in which relevant stakeholders can participate and provide the Appellate Section with information on their concerns regarding the legal implications and practical implementation of a potential interpretative judgment. These public hearings would be similar to those held by the Colombian Constitutional Court, which allow academics, civil society organizations, representatives of State institutions, and the public in general to participate by submitting written contributions in the form of amici briefs and by presenting oral arguments before the Court. A similar format for public hearings in the context of interpretative judgments could allow the SJP’s Appellate Section to hear those concerns and suggestions and address them in its interpretative rulings. These public hearings would be in line with the dialogical principle (Art. 1.b of Law 1922 of 2018), which underlies the Colombian transitional justice process and holds that dialogue among the interveners before the SJP should take precedence over adversarial proceedings. Hence, public hearings could provide a space for dialogue and help mitigate perceptions of arbitrariness and a lack of deliberation by allowing those who may be affected by interpretative judgments to feel that their concerns were sufficiently heard, debated, and/or considered before a final interpretative judgment is handed down.
Palencia-Tejedor and I have indicated that in the issuing of interpretative judgments, not only the broad aims of transitional justice must be taken into account, but also the practical implications of these rulings on the work of the SJP’s judicial bodies, so that these rulings do not impose burdens or requirements that de facto end up making the proceedings cumbersome and lengthy. Put differently, the well-intentioned pursuit of the overarching goals of transitional justice cannot overlook the challenges and limitations that those tasked with implementing the measures set out in the interpretative judgments may face on the ground or in the day-to-day work of the SJP’s Chambers and Sections.
The scrutiny of Interpretative judgments by former negotiators of the 2016 Peace Agreement, victims, SJP’s judges, and academics is essential to strengthen a legal tool that has significant potential to contribute to addressing judicial backlogs and delays in proceedings that can weaken the effectiveness of a transitional justice process, such as the Colombian one, that tries to provide closure to a more-than-60 year armed conflict with the former FARC-EP, which resulted in millions of victims and thousands of perpetrators.
4. Conclusion
Interpretative judgments are a sui generis creation of the Colombian TJ process, and they have the potential to contribute to making the Colombian TJ’s legal framework more harmonious and effective by providing early clarity and certainty on potential contentious legal questions or adjustments to the work structure of the SJP’s Chambers and Sections. The SJP’s Appellate Section has used interpretative judgments to avoid long-lasting conflicts of jurisdictions between the SJP’s Chambers and Sections; to encourage former perpetrators to contribute some truth before benefiting from transitional justice benefits, such as release from prison; to offer flexibility for the mobility of employees among Chambers and Sections to address the SJP’s most pressing judicial or work needs; and to clarify how restorative justice measures must be implemented, among others. Nonetheless, interpretative judgments face scrutiny and skepticism because, in their pursuit of achieving broad goals and objectives of the TJ process, such as truth, justice, and reparations, these rulings can add additional requirements and tasks that can impact the speed with which the SJP’s Chamber, Sections, and other departments carry out their judicial and administrative functions.
Interpretative judgments have made essential contributions to streamlining proceedings and clarifying legal issues relevant to the administration of justice within the SJP. Still, when issuing interpretative judgments, the SJP’s Appellate Section must take into consideration these rulings’ implications on the Chambers and Sections’ work on the ground, above all in a country where victims and alleged perpetrators inhabit territories that different armed groups are disputing. This reality of ongoing violence creates a challenge for complying with activities such as notifying decisions; contacting or interviewing victims or perpetrators to receive their comments or observations, which may not be necessary to decide former combatants’ requests for legal benefits in all cases; and implementing restorative judgments on rural territories. Interpretative judgments that do not consider those complexities can have an unintended effect of creating protracted legal proceedings within the SJP. I believe that holding public hearings in the context of interpretative judgments proceedings can address some of the aspects and practical implications that critics consider that the SJP’s Appellate Section overlook when issuing these rulings.
As indicated above, I consider interpretative judgments to be similar to advisory opinions under international law. But, unlike advisory opinions, interpretative judgments are binding. This characteristic makes this legal institution sui generis within the Colombian TJ process, which does not seem to be explicitly present in other transitional justice processes, making interpretive judgments a concrete Colombian contribution to the transitional justice framework. As underscored previously, three primary aspects makes this contribution significant: 1) Colombia’s development of a strong and transparent legal framework to legitimize the use of interpretative judgments; 2) the jurisprudential efforts to clarify the interpretative judgments’ objectives and principles; and 3) the SJP’s sustained use of interpretative judgments demonstrates its relevance to reflect on concrete ways to implement TJ’s pillars of justice, truth, reparation, and non-recurrence in Colombia. Interpretative judgments are thus a legal tool that could be helpful to countries with complex transitional justice processes, which include thousands or millions of victims and hundreds or thousands of alleged perpetrators to prosecute, as in Colombia. Interpretative judgments have significant potential to reconfigure how we think about TJ’s justice pillar. Still, the deliberative process for their adoption must continue to be strengthened and honed to better account for reality on the ground.
In conclusion, I hope that by the end of its mandate, the SJP will have consolidated a refined approach to its methodology and substantive analyses regarding interpretative judgments, thereby addressing some of the doubts or skepticism surrounding interpretative judgment as a legal tool, and leaving a legacy that can be helpful for future transitional justice processes in Colombia and elsewhere.