Transitional justice seeks to foster public trust, social reconciliation and effective victim reparation (De Greiff, 2011). Some commentators argue that constitutional courts should contribute more actively toward these aims (Ginsburg, 2012). This may bring about a tension among the goals of transitional justice and the limits of judicial power. The decision in which a Mexican court ordered the executive branch to establish an ad-hoc commission of inquiry to solve the Ayotzinapa case (June 4th, 2018) provides a useful example to discuss the role of the judiciary faced by the systemic failure of justice institutions. The presentation aims to explore the ways in which we can evaluate courts’ decision to exceed the powers placed upon them, with the view of restoring the Rule of Law.
This contribution analyzes the rights to justice, truth and reparation in the Inter-American Human Rights System. It argues that in transitional justice contexts, these rights not only entail the obligation to investigate, prosecute and punish human rights violations, but also to exercise due diligence in preventing those violations; guaranteeing non-repetition; clarifying the truth; and providing security. These obligations are intermingled, and their inter-dependence reinforced in a transitional context. It also suggests a balance between the conventionality control and the national margin of appreciation in contexts of transition from armed conflict towards a negotiated peace. In particular, the paper advances that these contexts require the latter doctrine be re-assessed: states are better placed to design and implement the necessary mechanisms and platforms to move to a lasting peace; leaving the parameters of the conventionality control to a minimum core of prohibitions.
As international courts gain in influence, many worry that they will impoverish domestic politics. This paper (co-authored with Sandra Borda and Courtney Hillebrecht), focuses on the Colombian peace process, to show that these concerns misconstrue the way international courts actually work. The 2016 Colombian peace accord opens the way to a far less punitive peace than many of those familiar with the courts and underlying treaties would have deemed possible. The effect of the engagement of the international courts in Colombia has not been to impose rigid conditions from afar, but rather to allow domestic players to reinterpret the content of Colombia’s international legal obligations: the terms of Colombia’s peace were produced through—not despite—the international courts’ ongoing deliberative engagement with the peace process. The Article draws on original empirical data to reveal precisely how the international courts enabled the construction of Colombia’s sui generis agreement.
There is an ongoing debate on the role of international courts in national politics. Taking as an example the peace process between the Colombian government and the FARC, Hillebrecht, Huneeus and Borda (2018) have identified a process of “judicialization of peace”, underlining the special weight that international courts (in particular, the ICC and the Inter-American Court) had in the peace negotiation. Gargallela (2019), in turn, has objected the latter’s reading of the role of international courts in the Colombian case, proposing the theory of deliberative democracy as a more appropriate approach. This paper aims to contribute to this debate, and propose a coevolutionary analysis of the phenomenon, based on a dialogic, polycentric and incremental view of the interactions of the courts involved in the design of Colombian transitional justice.