Written by Alexander Diaz

Introduction

In a Colombian courtroom  on September 18th, 2025, twelve former military officers were convicted for their involvement in the deaths of civilians during the Colombian civil conflict.¹Alfie Pannell, Colombian Court Ruling Sentences 12 Ex-Military Officers, Al-Jazeera (Sept. 18, 2025), https://www.aljazeera.com/news/2025/9/18/colombian-court-ruling-sentences-12-ex-military-officers/ (on file with American University International Law Review). Their sentences ranged from five to eight years, but did not include a single day in prison, or a fine of any kind.²Id. This was the first ruling against individual soldiers pronounced by Colombia’s Special Jurisdiction for Peace, also known as the JEP.³Id. The convicted willingly submitted to prosecution, and the JEP doled out sentences of restorative justice—projects aimed at restoring the communities affected by their crimes, including the construction of memorials for victims, community centers, schools, health centers, and improvements to rural roads and replanting of forested areas.⁴Valentina Parada Lugo, La JEP Sanciona con Hasta Ocho Años a 12 Exmilitares por el Caso de Falsos Positivos en la Costa Caribe [After 8 Years, the JEP Sentences 12 Ex-Military in the False Positives Case], El País (Sept. 18, 2025, 6:32 PM), https://elpais.com/america-colombia/2025-09-18/la-jep-sanciona-con-ocho-anos-a-12-exmilitares-por-el-caso-de-falsos-positivos-en-la-costa-caribe.html (on file with American University International Law Review). In the same breath, the JEP’s decision has been hailed as a milestone for the families of victims and insufficient for the severity of the crimes committed.⁵Pannell, supra note 1. The foundations of the JEP reflect a revolutionary step in transitional and restorative justice, however, harsher and more impactful sentencing may be necessary to prevent inadequacies in the administration of justice against war criminals.

Background

Until 2016, Colombia suffered what has been termed the longest-running armed conflict in the Western Hemisphere.⁶See An Overview of Conflict in Colombia Int’l Ctr. for Transitional Just. 1 (2009) https://www.ictj.org/sites/default/files/ICTJ-Colombia-Conflict-Facts-2009-English.pdf (on file with American University International Law Review). Guerilla groups and the Colombian government waged war for over fifty years, leaving over 200,000 people dead.⁷Claire Klobucista & Danielle Renwick, Colombia’s Civil Conflict, Council on Foreign Rels. (Jan. 11, 2017, 7:00 AM), https://www.cfr.org/backgrounder/colombias-civil-conflict (on file with American University International Law Review). In November 2016, FARC, the largest remaining guerilla force, signed a final peace deal with the government which fully demobilized all FARC troops, legitimized FARC as a political party, and established the JEP.⁸See Peace in Colombia, Just. for Colom. https://justiceforcolombia.org/about-colombia/peace-in-colombia/ (on file with American University International Law Review) (last visited Jan. 7, 2026); What Macro-Cases has Colombia’s Special Jurisdiction for Peace (JEP) Opened?, Colomb. Peace (Mar. 12, 2020) https://colombiapeace.org/what-macro-cases-has-colombias-special-jurisdiction-for-peace-jep-opened/ (on file with American University International Law Review) [hereinafter JEP Macro-Cases].

The JEP’s mandate is to “administer transitional justice and uncover the crimes committed before December 1, 2016 in the context of the armed conflict.”⁹JEP Macro-Cases, supra note 8. The transitional justice element of this mandate reflects a culmination of changes over the past several decades–a focus on restorative justice. In previous decades, transitional justice generally focused on traditional justiciary methods such as incarceration and monetary fines, known as retributive justice.¹⁰Janna Greve & Lorena Cecilia Vega Dueñas, Insights from Colombia: Restorative Transitional Justice and the Special Jurisdiction for Peace, 6 Int’l J. of Restorative Just. 257, 261 (2023).

Restorative justice prioritizes repairing the harm perpetrated against victims and accountability on the part of offenders over punitive measures.¹¹Three Core Elements of Restorative Justice, Restorative Just. Exch., https://restorativejustice.org/what-is-restorative-justice/three-core-elements-of-restorative-justice/ (on file with American University International Law Review) (last visited Oct. 18, 2025). The JEP embraces this concept by handing down restorative sentences to offenders who both voluntarily submit to prosecution and take full responsibility for their actions.¹²Greve & Dueñas, supra note 10, at 257, 265–66. These restorative sentences range between two and eight years depending on the level of involvement in a given crime, and are limited to reparative projects decided with the input of victims, including the construction of memorials and the improvement of community infrastructure.¹³Id. at 266–67. The incorporation of restorative methods in the Colombian transitional approach not only provides an avenue for increased accountability by war criminals and (non-monetary) reparations for victims, it represents a historic step forward for the application of restorative justice.¹⁴Id. at 259. Never before have restorative justice concepts been applied in such a broad scale, or as the primary focus of transitional mechanisms.¹⁵Id. at 259, 260, 262–63. However, this historic application is not without downside; despite the benefits of restorative justice, there are legitimate and readily visible concerns that it does not provide justice commensurate with the crimes the offenders.

Analysis

In order to address the large volume of crimes, the JEP groups numerous crimes together by category into “macro-cases” to study the broader patterns of criminality.¹⁶Macro-Criminality and the Case of Colombia: ICTJ Translates Herbert Jäger’s Seminal Work into Spanish, Int’l Ctr. for Transitional Just. (Sept. 18, 2023), https://www.ictj.org/latest-news/macro-criminality-and-case-colombia-ictj-translates-herbert-jäger’s-seminal-work (on file with American University International Law Review). The JEP has opened seven of these macro-cases; the September 18th ruling comes from Macro-Case 003.¹⁷JEP Macro-Cases, supra note 8; Pannell, supra note 1. Macro-Case 003 addresses “false positives”–civilian casualties masked as legitimate killings of enemy combatants.¹⁸Id. These killings number in the thousands, and Macro-Case 003 spans numerous sub-cases.¹⁹Id. The severity of these crimes are readily apparent, and in traditional justice systems, they would merit equally severe punishments. However, because they have taken full accountability and willingly submitted to prosecution, none of the offenders convicted in the recent ruling will see the inside of prison, nor will they pay any monetary reparations.²⁰JEP emite primera sentencia por asesinatos y desapriciones forzadas ilegítimamente presentadas como bajas en combate en la Costa Caribe. Entre 5 a 8 años de Sanciones Propias para 12 exintegrantes del Batallón ‘La Popa’ [JEP Hands Down First Sentence for False Positive Killings and Disappearances Committed in Combat on the Caribbean Coast. 5 to 8 Years of Special Sanctions for Ex-Members of the ‘La Popa’ Battalion.], Jurisdicción Especial para la Paz [JEP] (Sept. 18, 2025), https://www.jep.gov.co/Sala-de-Prensa/Paginas/-jep-emite-primera-sentencia-por-asesinatos-y-desapariciones-forzadas-ilegitimamente-presentadas-como-bajas-en-combate-en-l.aspx (on file with American University International Law Review). Instead, they will work under government supervision on one of six restorative projects, including repairing heavily damaged urban and rural areas, constructing memorials, and building schools.²¹Id.

There is no doubt that good is being done by these projects, as they were created with victim input and approval,²²Id. but without any retributive measures, what justice has truly been rendered for victims? The crimes that the defendants in Macro-Case 003 stand convicted of—the intentional killings of civilians during non-international military operations—are grave breaches international criminal law, namely the Geneva Protocol of 1977.²³Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts art. 13, June, 8 1977, 1125 U.N.T.S. 609.  Such breaches are deemed war crimes and the most serious violations of humanitarian law.²⁴Repression: Punishing War Crimes, Int’l Comm. of the Red Cross, https://www.icrc.org/sites/default/files/external/doc/en/assets/files/other/penal_repression.pdf (on file with American University International Law Review) (last visited Jan. 7, 2026). Under the Rome Statute, convictions for such crimes are to be punished by incarceration, fines, or forfeiture of assets.²⁵Rome Statute arts. 5, 77, 110, July 1, 2002, 2187 U.N.T.S. 90. Where retributive measures like these are a core component of effective justice at the international scale, they are a necessity at the national level where serious crimes like the murder of civilians and subsequent coverups have been committed. The benefits of increasing accountability via restorative justice are indisputable but pursuing them without regard for the heinous nature of crimes like these does not provide a necessary element of deterrence nor justice that matches those crimes. Furthermore, a basis for reconciliation of the positives of restorative justice and the strength of retributive justice already exists within the JEP framework.

The JEP characterizes itself as a hybridization of retributive and restorative measures.²⁶Greve & Dueñas, supra note 10, at 257, 265. Sentences focused on restorative projects rather than incarceration or other punitive measures are considered by Colombian authorities to be retributive in part because they still extract reparations from the offender, and subject them to locational monitoring.²⁷Id. at 267. In addition to this, traditional retributive measures remain available for those offenders who do not acknowledge responsibility for their actions under the JEP.²⁸Id. at 265–66. Thus, the JEP has the tools to adjudicate incarceration and other more traditional forms of justice. What might then be done is simplistic, but commensurate with the grave nature of mass killings and other serious crimes committed against the civilian population: skew the hybridization back toward retributive means.

Recommendation and Conclusion

Low level offenders, such as those not directly involved in crimes, may still be granted purely restorative sentences in exchange for total transparency and voluntariness. Those offenders who were direct perpetrators may still be given restorative sentencing in part for the same, but as an augmentation to traditional retributive incarceration or other appropriate punishments. Let these offenders, who have directly ordered or committed mass murders and other internationally recognized war crimes lessen their sentences by completing restorative projects, but do not allow them to remain free from sanction or deprivation of liberty entirely. In this further hybridized system, meaningful reparations can still be provided for victims, but the offenders do not avoid meaningful punishment in exchange. In this way, retrospective contemplation of restorative justice will not cast doubt on its efficacy, and the deprivation of life will be met with equal and appropriate severity.