@article{2016:eckhardt:the_legal_,
title = {The legal framework for the peace process in Colombia and the precarious role of transitional justice},
year = {2016},
note = {Four years ago the Colombian government has entered into peace
negotiations with the guerilla group FARC in order to terminate the
armed conflict which has been raging in the country for more than
fifty years. The most controversial issue has continuously been the
incentives that the government would grant the guerilla group in the
form of penal benefits in order to demobilize and reintegrate them
into the Colombian society. As Colombia is a democracy based on the
rule of law, these penal benefits seem to conflict with the legal
standards provided for by the constitution. In order to meet this
challenge, the Colombian parliament opted for a constitutional
amendment, stipulating a particular framework for “instruments of
transitional justice”. The first part of this article will focus on
the adaption of the concept of transitional justice to the Colombian
situation. Its application in Colombia demonstrates differences to
paradigmatic cases of transitional justice. The concept obtains the
function of a legal term which serves to justify deviations from legal
standards. This entails adjustments of components and objectives of
transitional justice and causes the risk of confusion or abuse of this
term. In the second part, the legal concept of transitional justice,
which has been established by the Colombian constitutional court, will
be analyzed. As will be shown, it reveals a lack of structure and
demonstrates legal deficits. An alternative model will be presented,
which may serve to maintain the case law of the constitutional court
and to avoid these defects. Based on this model, the scope of
application of the legal framework regarding the inclusion of other
actors in the peace agreement is evaluated as a critical factor.},
journal = {VRÜ Verfassung und Recht in Übersee},
pages = {368--392},
author = {Eckhardt, Niklas},
volume = {49},
number = {4}
}