At first, it seemed a rather unremarkable announcement.
On 1 July 2026, a week after Colombia elected the outsider candidate and lawyer Abelardo de la Espriella – who promised during his campaign shutter the transitional justice system he had previously defended – its judicial arm announced a new ruling. In the decision, the Appeals Chamber of the Special Jurisdiction for Peace (JEP) upheld the historic conviction handed down a year ago against seven high-ranking members of the Revolutionary Armed Forces of Colombia (FARC), over 20,000 kidnappings which it deemed war crimes and crimes against humanity.
After all, the former rebel leaders – including the last FARC commander-in-chief, Rodrigo Londoño, or ‘Timochenko’ – owned up to their responsibility over these crimes and the FARC’s criminal policy, which the JEP’s acknowledgment chamber had documented in a three-year investigation. The convicted men have publicly apologised to their victims, provided truth and are participating in initiatives to redress them. All of these are conditions to receive a more lenient 5-to-8-year sentence in a non-prison setting, as stipulated in the peace agreement they signed a decade ago with the Colombian government.
The special tribunal’s appeal ruling, however, introduced a new element: it upheld the views of many victims and experts in transitional justice who argued that the JEP’s original decision of September 2025 was not sufficiently clear regarding the conditions under which they must serve their sentences.
“The sentence must be effective and not indefinite,” said Justice Eduardo Cifuentes when announcing the new ruling, which supersedes the previous one. “The appeals lodged by the victims and the Public Ministry were upheld; they had pointed out that the first-instance judgement was vague and lacked the retributive element of the special sanction,” he added.
What is ‘effective restriction of liberty’?
After examining 52 legal appeals lodged by victims, victims’ organisations and the Inspector General’s Office, as well as 17 from those convicted under the original judgement, the appeal judges concluded that “the trial judge – that is, their colleagues in the first instance section of the special tribunal – did not define clearly, precisely and comprehensively all the elements constituting the special sanction”. For this reason, they noted, it was necessary to “incorporate the necessary corrective measures”.
With this statement, they agreed with those who argued that, despite the historic nature of the sentence, it still left many loose ends. As Justice Info reported, the greatest doubts centred on the retributive component of the sentence, which the peace agreement dubbed ‘effective restriction of liberty’. This ambiguous term sought to distinguish it from ordinary imprisonment whilst fulfilling the Colombian State’s obligation, under international law and its own legislation, to impose effective sanctions for atrocious crimes.
Defining this clearly is essential to fulfilling Colombia’s innovative transitional framework, which focuses on investigating, prosecuting and punishing those most responsible for the most serious and emblematic crimes through sanctions that combine two objectives: punishment and redressing harm. Among the questions that remained vague were the extent to which those convicted may move about, the conditions under which they will be confined, and who will monitor them during the enforcement of their sentence and after the transitional justice process concludes in 2034.
In fact, the JEP’s appeals judges stated this in terms that can hardly be interpreted as anything other than a stern rebuke to their colleagues who signed the original decision. “When the first-instance judgement confuses the purpose of the sanction with its verification mechanisms, or when it fails to specify the minimum elements of the effective restriction of rights and freedoms, it falls to the second-instance court to restore the legality of the decision by clearly establishing the substantive elements of the sanction,” they wrote.
Clearer rules for the retributive component…
The appeals judges noted that their first-instance colleagues “explained how compliance would be monitored, but didn’t define with sufficient clarity what respondents would do, where, for how long, or the specific restrictions they had to comply with”. Indeed, the original ruling stipulated that the convicted individuals would face restrictions on their rights and freedoms, but didn’t specify which ones.
For this reason, the appeal ruling set out five conditions that the seven convicted FARC members must comply with during their sentence: first, they must have a “fixed abode” at a designated location near where they carry out their redress activities; second, they will be subject to a “strict timetable” for their restorative activities, from Monday to Friday between 8 am and 5 pm, during which they “must remain at the sites where their assigned projects are carried out”; third, they will be subject to a “travel ban” outside the department where they carry out their restorative activity, unless prior authorisation is granted by the special tribunal; fourth, a “ban on leaving the country” applies during this period, unless permission is granted by the JEP, which it describes as “exceptional”; finally, they are under an “obligation to wear an electronic monitoring device”.
The judges also explained that each convicted person’s place of residence will be “in the municipality or urban area where the assigned restorative activities are carried out over each six-month period, in accordance with the phases and locations defined in the timetable”. If a person has activities in several departments, they explained, “their place of residence will be determined progressively as the schedule is implemented (…) so that at all times during the sentencing period, the convicted person knows with certainty where they must reside”.
In another section, the appeal judges noted that “whilst the person concerned remains within the specified territory, they may move freely within it during leisure hours, without requiring an authorisation”. In their view, “this clarification is necessary to avoid interpretations that would turn the sanction itself into a measure of house arrest incompatible with the restorative and reparative nature” of their activities.
… but they will be able to move around an entire department
The new ruling did not, however, specify the boundaries of that place of residence, apart from the fact that it is situated within the assigned department of residence.
This could run counter to the peace agreement and the JEP’s procedural law, which required it to specify “in concrete terms the territorial areas where those subject to sanctions will be located during the periods set aside for the execution and fulfilment of the system’s sanctions, which shall have a maximum size equivalent to that of the transitional rural normalisation zones” in which they laid down their arms. Those areas ranged from 5 to 15 hectares (less than 0.2 square kilometres), whilst Colombia’s departments cover areas ranging from 52 (in the case of San Andrés) to 109,000 square kilometres (in the case of Amazonas). Bogota’s administration requested clarification from the JEP.
On certain points, the appeal judges upheld the original judgement. For example, when it ruled that ‘personal digital assistants’ (PDAs) resembling mobile phones should be used to monitor sanctions, as “they allow for the continuous and objective verification of compliance with the territorial and temporal restrictions imposed on the defendants”. “They don’t serve a custodial or penal purpose, as is the case with electronic tags”, the appeal judges explained, but rather “serve exclusively for verification purposes”. In their view, it “constitutes a reasonable restriction on the rights in question”, although they also said that “monitoring cannot be limited to knowing ‘where’ the person subject to the conditions is” but must “verify what they do, how they do it, whether they adhere to timetables, whether they respect the restrictions, and, in the case of the restorative component, whether they meet the pre-established indicators and contribute effectively to redress”.
These are rules that the former FARC leaders sought to overturn. In their appeal, they contested that “restrictions and monitoring mechanisms had been imposed on them which (…) exceed the regulatory framework of the sanctions themselves, such as geofences, electronic devices and restrictions on movement comparable to preventive detention measures under the ordinary criminal justice system”. These conditions, they argued unsuccessfully, “would transform the restorative sanction into a covert retributive punishment”.
Sanctions take precedence over political participation
One right that the JEP had decided not to restrict is that of political participation, a debate that has accompanied the body ever since former guerrillas began to be elected to public office. In its first instance ruling, the JEP had established that sanctions are compatible with the exercise of public office, subject to two rules: political activity must not be used to make “denialist or revictimising statements” and, in the event of a conflict between the two, the sanction would take precedence. However, in the absence of clear rules regarding the retributive component, it was not possible to determine the scope of political activities.
The appeal judgement clarified that the sanction takes precedence over political participation, which “must be exercised in a manner that is compatible with the effective fulfilment of the transitional criminal sanction”. It is therefore for the tribunal to assess, on a case-by-case basis, “whether or not the specific political activity that those subject to sanctions intend to carry out interferes with the effective fulfilment of the restorative work”. Certain activities, such as taking part in debates, voting or participating in peace-building initiatives, would in principle be compatible, and the timetables for reparative activities could be adjusted to allow for this.
In practical terms, this will not have an effect for them. Two of those convicted of kidnapping, Julián Gallo and Pablo Catatumbo Torres, were senators for the Comunes party under the provisions on political participation in the peace agreement, which granted them ten seats in Congress for two legislative terms. However, their terms of office ended on 20 July and they didn’t stand for re-election. Two other former rebel leaders, Pedro Baracutao and Jairo Cala, who were also members of parliament and face charges in other cases, also saw their terms come to an end. Nevertheless, this was one of the major outstanding issues.
More rules for restorative projects and sentence reductions
In the other component of the ruling – the restorative aspect – the appeal judges also introduced several changes. The most significant is that these redress for victims – known as ‘work, projects and activities with a reparative nature’ or TOAR from the Spanish acronym – “must necessarily be carried out under restrictive conditions, as the purpose of the sanction requires that all restorative work be carried out within a framework of supervision, territorial confinement and adherence to timetables”.
This condition also applies to reparative activities in which those now convicted participated prior to their sentencing, activities which the JEP termed ‘early TOAR’, and this has immediate implications, as the first-instance judgement had approved reductions in the length of sentences for several of those convicted, on the basis of such activities. Having applied a formula of one day deducted for every two spent on these initiatives, the JEP authorised the majority to have seven months deducted and one of them, Jaime Parra, known as ‘El Médico’, to have eleven months deducted.
However, the appeal judgement noted that the original decision had approved these reductions by taking into account the reparative nature of the activities but failed to meet the other condition of ‘specifying a particular geographical location’. For this reason, it overturned the approval of sentence reductions for some of those convicted. For example, it prevented all seven of them from having time deducted for humanitarian demining in Briceño (Antioquia) on the grounds that “the direct, personal and material participation of the applicants in the work was not substantiated”, but rather “their involvement was limited to management, coordination and community support for the project”.
“In that screening process,” the new judgement explained, “all actions were excluded which (…) actually constitute activities required of all respondents in order to gain and retain benefits under their conditionality regime”, such as participating in acts of forgiveness towards victims or providing information to the JEP or the Search Unit for Missing Persons. In its view, it would otherwise amount to a “double benefit” as they would simultaneously constitute conditions for access to transitional justice and part of the more lenient sanction. It also excluded planning activities because, in its words, “they don’t relate to the fulfilment of the sanction but rather to the minimum conditions necessary for its design”.
Finally, the appeal judgement established that the first decision had failed to take into account many restorative activities proposed by the accredited victims in the macro-case, and ordered that 30 of these be reassessed, with a view to incorporating a territorial criterion into the redress component.
A path forward with the new De la Espriella government
In their judgement, the JEP’s appeal judges also urged the national government – now led by a critic – to support enforcement of the sanctions. In their ruling, they argued that it has a “specific duty” to “adopt all necessary measures to ensure that the special sanctions are enforced, in both their restorative (TOAR) and retributive components”.
Beyond the JEP’s orders to De la Espriella, the long-term legitimacy of these decisions amongst Colombians will depend largely on who ensures – and how – that those already convicted do in fact comply with both components of the sanction. This is an area where the executive is a key player, something the governments of Iván Duque and Gustavo Petro (or the JEP, for that matter) never recognised.
For a government taking office with a tough-on-crime agenda, successfully implementing the retributive component of the sanctions could be a significant achievement. And against a backdrop of a national fiscal crisis, drawing on existing public policies under the government’s remit – such as collective victim reparation schemes or the Territorially-Focused Development Programmes (PDET), which were designed through a participatory process involving 300,000 residents of the municipalities historically hardest hit by the war – could address many of the questions raised by the appeal judges regarding reparatory measures.
Ultimately, the JEP’s second-instance conviction of the former FARC leaders resolves, on paper, some of the major concerns raised by the first ruling; however, how these are implemented in practice will determine whether the Colombian model will continue to serve as a viable path to conflict resolution.
A CHANGE – ONCE AGAIN – IN THE THEORY OF CRIMINAL LIABILITY
There was another significant change between the two rulings, which doesn’t affect the substance of the judgement but reveals differing perspectives within Colombia’s transitional justice system.
In the first-instance judgement, the judges decided to hold former members of the FARC Secretariat accountable by virtue of their ‘position as guarantors’. In other words, they held them responsible for all kidnappings committed by the rebel group, including those that occurred while they weren’t members of its leadership, on the grounds that they created a risk for the population and should have ensured that no one was kidnapped or murdered in the areas under their control – a form of responsibility similar to criminal liability by omission.
In doing so, they altered the legal theory underlying the charges originally brought by their colleagues from the Acknowledgment Chamber, who had verified, one by one, each defendant’s position within the group, the structures over which they exercised control, and how the chain of command functioned in each one, before determining who bore ultimate responsibility for giving the order to commit the crimes or had the actual capacity to prevent them.
Under this theory – that all were liable for everything and it wasn’t necessary to prove specific cases – the first instance ruling sentenced the seven former guerrilla leaders to the same eight-year prison term, rather than calculating it according to the length of time they had been in command.
The appeal judges reverted to the reasoning of the initial indictment, determining that they were indirect perpetrators: in other words, liable for the actions they ordered or could have prevented. Consequently, they reverted to the sanctions originally sought, with four of them – Londoño, Jaime Parra, Milton Toncel and Pablo Catatumbo – sentenced to eight years, Pastor Alape to seven, Julián Gallo to six and Rodrigo Granda to five.
