Posibilidad de conciliar el principio de irretroactividad de la ley penal con la necesidad de investigar, juzgar y sancionar graves violaciones de derechos humanos en el marco de la justicia especial para la paz.

Abstract

The establishment of the Special Jurisdiction for Peace (JEP) in Colombia, as part of the peace process, has sparked significant legal debates, particularly regarding the principle of non-retroactivity of criminal law. This principle, rooted in Roman law and natural law, is enshrined in the Political Constitution of Colombia and is essential for ensuring legal certainty and protecting the fundamental rights of individuals. However, in the context of transitional justice, the JEP must reconcile non-retroactivity with the need to prosecute serious violations of human rights and international humanitarian law committed during the armed conflict. Through an analysis of national and international law, the jurisprudence of the Constitutional Court and the Supreme Court of Justice has applied and adapted this principle in Colombia. The JEP has sought to balance the need for justice for victims with respect for the rights of the accused, applying international norms that criminalize heinous crimes recognized at the time of their commission, even though the retroactivity of criminal law remains a controversial issue. Given these circumstances, this article adopts a qualitative approach grounded in legal doctrine and socio-legal theory, focusing on an interpretive analysis of the scope of the principle of non-retroactivity in criminal law within the context of transitional justice in Colombia, particularly as it relates to the framework of the Special Jurisdiction for Peace. Thus, the study of the principle of non-retroactivity of criminal law in the context of the JEP is fundamental to understanding the legal and social implications of transitional justice in Colombia. Finally, through a comprehensive and balanced approach, with the aim of ensuring that the peace process is fair, legitimate, and sustainable, offering a real opportunity for reconciliation and the construction of a more equitable society, this study aims to address the following question: ¿What is the interpretation and scope of the principle of non retroactivity in criminal law within the context of transitional justice, particularly in situations where it is necessary to investigate, prosecute, and punish serious violations of human rights and international humanitarian law, such as those addressed by the Special Jurisdiction for Peace in Colombia?