In its Macro Case 01, the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP) studied massive detentions committed by the Revolutionary Armed Forces of Colombia – People's Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) to determine if they should be remanded to amnesty proceedings or tried as international crimes. This included the question of detention of civilians and persons hors de combat for an eventual “humanitarian exchange” with imprisoned guerrilla fighters. The JEP concluded that this was in fact the crime of hostage-taking, because the sole reason for the detention was to force a “prisoner exchange”, and conditions of detention were so harrowing that persistent detention amounted to a threat to the life and physical security of the hostages. While the JEP did not refer to conditions of lawful detention, the ruling does suggest circumstances of lawful detention by non-State armed groups and limits to their authority to detain.

This article analyzes the main investigative and legal challenges addressed by the Acknowledgment Chamber of the Colombian Special Jurisdiction for Peace (SJP) in Case 07 on recruitment and use of children in the armed conflict. First, it presents a general background on the mandate of the SJP as a special system of justice – the outcome of the 2016 Final Peace Agreement reached between the Colombian government and the former FARC-EP guerrilla group. Second, it outlines how the investigative methodology used in Case 07 addressed challenges related to understanding child recruitment as a complex criminal phenomenon, the identification of those bearing the greatest responsibility, and the approach to the broad scale and scope of the victimization. Finally, the article addresses the main challenges faced by the Chamber in the legal qualification of the criminal patterns identified, and how it resolved three key issues: the determination of the age threshold under which child recruitment constitutes a war crime, the definitions of the international humanitarian law status of protections of individuals within an armed group, and the classification of different forms of gender-based violence as war crimes.

Bearing in mind that the peace process between the Colombian government and the Revolutionary Armed Forces of Colombia – People's Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) has been an important milestone for transitional justice, this article aims to share some of the good practices and achievements of this process, as well as the setbacks and challenges that could be avoided in future peace processes. The article will highlight relevant contributions from the Chamber for Amnesty or Pardon (CAP) such as impacting the resocialization of former FARC-EP members and developing international humanitarian law discussions in relation to war crimes and less serious crimes. Additionally, it will describe some of the main challenges faced by the CAP, such as the high number of applications for transitional benefits that it receives, the high number of proceedings that it supervises, and the security concerns arising from implementing a peace agreement in a country still in conflict.

Transitional justice systems generally aim to achieve two goals. One is to bring the perpetrators of past atrocities to justice to ensure that they do not go unpunished, which involves the State fulfilling its duty to investigate, prosecute and punish serious human rights violations and breaches of international humanitarian law (IHL). The other is to bring about reconciliation to heal a divided society and achieve peace and stability. This normally requires the adoption of measures of clemency, such as granting amnesty, so that those who took part in the country's violent past can return to civilian life. The use of IHL is relevant in attaining both these goals because its complex nature means that it provides the legal basis for their implementation. However, this very complexity can mean that there are contradictions or complementarities between its characteristics. This article looks at the case of the Special Jurisdiction for Peace (JEP) in Colombia, showing how this transitional jurisdiction has used IHL as a legal basis both for investigating, prosecuting and punishing serious violations committed during the Colombian armed conflict and for granting amnesty to those who took part in the hostilities. These different uses by the JEP demonstrate that IHL is a flexible tool that can facilitate the process of delivering both justice and peace after a conflict has ended.