Alternative criminal sanctions for international crimes in transitional contexts

This dissertation assessed from a legal-doctrinal, theoretical, and empirical perspective whether ‘alternative criminal sanctions’ may be ‘adequate’ for international crimes being punished in transitional contexts, according to international (criminal) law and transitional justice theory. The thesis has as a case study the sanctioning regime of the 2016 Final Peace Agreement signed by the Colombian government and the former guerrilla group, the FARC-EP. The Colombian case presents a rich context for assessing this complex issue since it is the first time a State Party to the International Criminal Court's statute has signed a peace accord that prima facie allows perpetrators of international crimes to receive non-custodial sanctions. Accordingly, the purposes of the thesis were: i) assess the conformity of alternative criminal sanctions with international law; ii) explore the theoretical justifications and goals of such sanctions for international crimes in transitional contexts; iii) empirically examine the perceptions of stakeholders from Colombia about this type of sanctions and the factors informing those perceptions. One finding is that there are no fixed standards for (in)adequacy of sanctions. However, specialised courts and bodies dealing with international crimes have identified criminal penalties consisting of prison sentences proportional to the gravity of the crime and culpability as one of the standards to determine adequacy. Nevertheless, States have great deference when determining the range and proportionality of sentences and the ICC’s penalties regime is not meant to be a standard setting for national jurisdictions. Consequently, although the primary form of punishment under the RS is imprisonment, State Parties are not obligated to adopt the same modes of punishment and range of penalties as part of their national legal frameworks. Given the nature of international crimes and the circumstances of transitional societies, existing criminal punishment goals and practices are largely unjustified in transitional contexts. Moral and practical reasons exist why the standards and principles of traditional punishment theories should not be used as standards by which the justice of the sanctions is assessed. Therefore, if criminal-law responses are adopted, any duty to punish, either at the national or international level, should be broader and contextualize the principles and standards according to the circumstances and aims of TJ. This thesis’ theoretical contribution offers a substantive account of the values, processes and outcomes that alternative criminal sanctions must fulfil to be justified and considered adequate, in line with the punishment rationales that remain valid in transitional contexts. Accordingly, the thesis proposes a third route of criminal sanctions and the re-constructive sanctions, a new conceptualization of alternative sanctions adopting restorative justice aims. Furthermore, it proposes a contextualized principle of proportionality that incorporates specific forward-looking interests of the transition in the assessment of the adequacy of sentences. The empirical contribution sheds light on the theoretical and practical promises, dilemmas, and challenges of the framework in Colombia. Such findings have larger implications for our understanding of concepts such as justice, accountability, reparation or reintegration, and for the characterisation and expressive functions of alternative criminal sanctions for international crimes in Colombia and beyond.

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