Restorative justice for peace-building

Colombian judge’s advice to Nepal: a vengeful system that prioritises punishment post-conflict is counter-productive

Judge Caterina Heyck speaking at a recent programme in Nepal. PHOTO: ICJ

Nepal must ensure that it maintains peace as it works through its transitional justice process, says an expert from Colombia, where violence has not stopped even though an entire legal system was created as part of the South American nation’s 2016 peace agreement.

“The sad part of this story is that we still have war,” judge Caterina Heyck said after a week of workshops and speaking engagements inKathmandu hosted by the International Commission of Jurists (ICJ).

“In Colombia we have a peace agreement, a judicial system, but we lack peace. But in Nepal you are not lacking peace and for me that’s really amazing,” she said. “To be in a taxi in Kathmandu, or to walk on the street at night and to not feel like I might be kidnapped… that peace you should never, ever lose.”

Colombia suffered five decades of conflict with guerrillas of the Revolutionary Armed Forces of Colombia (FARC). As many as 220,000 people were killed, 25,000 disappeared and millions displaced. But FARC splinter groups and other armed outfits still operate in some rural areas, and the current violence is said to be tied to drug trafficking.

“I can’t describe how bad it is to always have war, we are sick and tired of having a war,” added Heyck, whose ex-husband’s three members were kidnapped. 

“Even if you ask the victims who suffered the most, more than anything else they want to live in peace,” says the judge, who has written two books on the role of kidnapping during the conflict.

Colombia’s peace agreement included the setting up of a complex court system, the Special Jurisdiction for Peace (SJP), where Heyck is one of the justices. It includes two paths for prosecution: acknowledgement and non-acknowledgement.

Those who admit their acts will receive a ‘restorative sanction’, such as helping to build a bridge or finding and removing landmines. Those who do not receive an ‘alternative’ or ‘ordinary’ prison sentence, depending on whether they finally agree to cooperate.

The position of the perpetrator and the seriousness of the crimes committed are also factored into decision-making about sanctions.

“During peace talks the most difficult point was the design of the judicial system, because it was very obvious that (the top leaders of both the guerrillas and the military) were not going to sign the peace agreement if they were going to go to jail. It was as simple as that,” says Heyck.

In Nepal, where the transitional just process is currently stuck, recent disputes over a transitional justice law have focused on possible amnesty for the Maoists and state-side perpetrators of conflict era atrocities that are considered serious violations of human rights. In fact, it seeks to distinguish between political ‘murder’ and criminal ‘extreme murder’, which activists say renders the whole process meaningless.

A whole generation of young Nepalis has grown up without the knowledge of the decade-long Maoist insurgency that killed at least 17,000 people. It has been 17 years since the Comprehensive Peace Accord was signed in 2006. Families of over 1,400 disappeared are still waiting for the truth, and survivors of war crimes have not got justice.

Heyck explains that Colombia complies with international law in that it bans amnesty for those who were most responsible. “But they’re not going to go to jail if they acknowledge the truth, they’re just going to have a restorative sentence,” she says, adding, “it’s too early for us to say that we succeeded. It’s the victims who will say in the future if the system was right or wrong.”

Heyck had in-depth experience in international humanitarian law and working as a legal expert with the Colombian government, including as a peace negotiator, when she was one of 38 judges chosen for the SJP among thousands of applications. 

Much of her time is spent poring over legal texts and discussing cases with colleagues, but she most enjoys leaving the office to research incidents involving the country’s Indigenous people. 

She has also faced immense pressure, including as one of five justices who had to decide if a former FARC leader, Jesús Santrich, should be sent for trial in the United States or protected under Colombia’s non-extradition law. 

“It was very tough, the American embassy was involved, and the attorney general at the time was very close to the ambassador,” Heyck explains. 

“We asked for the evidence and the Americans did not send it… in the end, three out of five of us voted to provide him with the guarantee of non-extradition, and he was released.”

Today she feels like the wheels of justice are mired in a legal muck. She says: “We have nine years remaining… I know that it’s too little. We cannot grant justice to the victims if the perpetrator dies. Many are already in their 70s, in their 80s. Time is passing so fast, we must hurry.”

Asked whether a transitional justice process is needed in a country like Nepal, where most people appear to have moved on after the conflict Heyck says: “As a judge, as a lawyer, as a person who has worked for human rights, of course the answer would be yes. You cannot leave justice behind.”

But she cautions: “It has to be another type of justice … if after 60 years a former perpetrator who has been living peacefully is going to go to jail. That’s quite crazy. Which is why I go for restorative justice, not for punitive justice. That is the kind of justice that will bring more peace, that will go farther in terms of reconciliation. Because sometimes justice can stoke hatred, and can re-open wounds. That is not advisable.”

In Nepal, however, the former guerrilla commander Pushpa Kamal Dahal is now prime minister for the third time and has made insensitive public statements about victims. The transitional justice process is also stuck.