Transitional Justice in Ongoing Conflict: Colombia's Integrative Approach to Peace and Justice

By Maria A. van Nievelt
Cornell International Affairs Review
2016, Vol. 11 No. 2 | pg. 2/3 |

Civil War In Colombia: Fifty Years of Violence

A History of The Colombian Conflict

Colombia has suffered over five decades of an internal armed conflict that has claimed the lives, homes, and livelihoods of hundreds of thousands of its citizens— particularly in the rural countryside. The Colombian conflict is especially complex due to its protracted duration, multiplicity of actors, serious violations of human rights and humanitarian law, and the effect of the drug trade in criminalizing the civil strife.39 The dynamics, actors, and scale of the conflict have changed throughout the years.

The conflict can be traced to a civil war waged from 1948 to 1958 known as La Violencia. After claiming over 200,000 lives, the conflict ended with a powersharing agreement between liberal and conservative party leaders in Bogotá.40 However, radical liberals rejected the coalition's legitimacy and allied with the Communist Party, which had been excluded from power. These dissidents took to the countryside. The FARC emerged in 1964 with roots in these peasant self-defense leagues.41 That same year, Colombian rebels trained in Communist Cuba founded the ELN, the other guerrilla group active today.42 A second generation of insurgent groups emerged in the 1970s, most of which demobilized between 1989 and 1990.43

The FARC's military capacities took off when Colombia emerged as a producer of illegal drugs, especially cocaine. In 1978, after a badly handled economic liberalization wrecked the subsistence farming lifestyle of the guerrillas' constituency, the FARC decided to accept—and tax—peasants' illegal coca plantations across its controlled territory.44 Other insurgents would soon come to similar decisions. The new financial resources allowed the FARC and other guerrillas to finance better equipment, territorial expansion, and an immense increase in its number of fighters. Between 1982 and 1998, the FARC grew from 10,000 combatants to almost 17,000.45

A new actor also spurred the hike in violence—the paramilitaries. In the early 1980s, drug lords and large landowners began to establish strong private armies to protect their economic interests.46 Convinced that vigilante activity was an effective counterinsurgency strategy, the Colombian armed forces directly supported and trained these newly established paramilitary groups.47 In 1997, these paramilitary groups came together under an umbrella organization, the United Self-Defense Forces of Colombia (AUC). The AUC quickly became the conflict's most violent actor, but the army and police failed to stop it.48 Indeed, the Colombian state and the paramilitaries maintained a long, tacit alliance, with the AUC funding many politicians' campaigns or intervening with strong-arm tactics in so-called Colombian "parapolitics."49

But as it became clear that the paramilitaries did not limit their violence to the guerrillas, the Colombian government came under international pressure to outlaw paramilitary groups. When this proved unsuccessful, President Uribe brokered the demobilization of the AUC in 2003, in exchange for reduced prison time.50 The left-wing guerrillas, catalogued as a "terrorist threat" by the Uribe administration, were left out of the peace process.51 The bulk of the AUC had demobilized by early 2006, and its former leadership was extradited to the United States in 2008.52 The legal instrument that enabled this demobilization was known as the Justice and Peace Law, which came into effect in 2005. While there is no explicit reference to transitional justice in the legal text, the state has since acknowledged it as a transitional justice instrument. Indeed, at the time, the government alluded to the "restorative justice paradigm" and justified the lenient sentences in the name of national reconciliation.53

Demobilizing a large number of trained fighters, however, contributed to the rise of new criminal networks lacking centralized control—the so-called bandas criminales, or bacrim.54 In 2011, the bacrim comprised 6,000 individuals operating on six fronts.55 The bacrim adeptly filled in the authority vacuums in territories where the state presence was not consolidated swiftly enough after the military rollback of the FARC.56 These groups have directly taken over illicit economies, especially drug trafficking and illegal mining, and carried out extortions, disappearances, and forced displacements. The Colombian police estimated that these successors to the AUC were responsible for 47% of the 15,400 murders perpetrated in 2010.57

In 2010, Juan Manuel Santos, Uribe's former defense minister, was elected president and adopted a new approach to the conflict. For the first time, the state acknowledged an "internal armed conflict" and applied the discourse of human rights and international humanitarian law.58 In June 2011, Santos passed the Victims and Land Restitution Law, establishing a massive reparations program for over five million internally displaced Colombians.59 In July 2012, his administration passed a constitutional reform dubbed the Legal Framework for Peace, which wrote exceptional transitional justice instruments into the Colombian Constitution. The ongoing peace process with the FARC was formally inaugurated only a few months later.

International Crimes and Legal Obligations

Fifty years of conflict led to the death of more than 200,000 Colombians, most of them civilians. Each party to the conflict has perpetrated crimes against humanity, human rights abuses, and violations of international humanitarian law. Kidnappings, torture, sexual and gender-based violence, enforced disappearances, child-soldier recruitment, extrajudicial killings, and large-scale massacres have been used strategically and wantonly throughout the conflict.60 Roughly 12 percent of Colombians are victims of displacement, the second-largest percentage in the world.61 Further, the conflict has disproportionally affected Colombia's most marginalized groups: indigenous peoples, Afro-Colombians, and impoverished rural communities.

The Colombian state has certain international obligations to uphold in light of these crimes. As a monist country, Colombia recognizes the international human rights treaties it ratifies to be in the same category as the constitution.62 The state has ratified all major human rights treaties, including the Rome Statute, which accepts the jurisdiction of the International Criminal Court (ICC) over crimes against humanity and genocide from 2002 onwards, and over crimes of war from 2009 onwards. Colombia is also party to the Inter-American Commission of Human Rights (IACHR), having agreed to be bound by the decisions of the Inter-American Court of Human Rights in 1985.63

Further, the jurisprudence of the Colombian Constitutional Court is in line with the global accountability regime, adjudicating with reference not only to legally binding treaty law, but also soft law such as the Pinheiro Principles on Land Restitution; the UN Basic Principles and Guidelines (UNBPG) on the right to remedy and reparation for victims of gross violations of international human rights and humanitarian law; and the so-called Joinet/Orentlicher Principles against impunity.64 This complex framework structures and restricts the state's maneuvers in its negotiations with the FARC. Extensive amnesties like those offered to guerrilla groups in 1990 and 1991 would not be feasible today.65

Transitional Justice in Colombia

The Justice and Peace Law (Ley No. 975, 2005)

Colombia's first transitional justice instrument was passed in 2005 under the Uribe regime and is commonly known as the Ley de Justicia y Paz, or the Justice and Peace Law (JPL).66 The JPL offered reduced sentences to demobilized combatants who had committed serious crimes on the condition that they would take on the responsibility of recompensing their victims. The instrument was conceived to incentivize the demobilization of the state-friendly paramilitaries. Around 4,800 former combatants—mostly paramilitaries—qualified for alternative sentences.67

As a first attempt to use transitional justice in complementarity with peace-making, the JPL has a spotty record at best. The legitimacy of Uribe's initiative was questionable due to the links between the Colombian state and the paramilitaries. Some scholars expressed fear that if the initiative succeeded, the state's manipulative use of transitional justice discourse in the absence of a transition would, in effect, legitimize impunity to the benefit of the paramilitaries and certain political elites.68 But the Colombian JPL experience also demonstrated how activists, international actors, and nongovernmental organizations could re-appropriate transitional justice discourse to obtain fairer legislation. Indeed, the advocacy of victim groups, the UN High Commissioner for Human Rights, the European Union, and others brought about the enormous procedural, if not ultimately substantive, gains for victims' rights when one compares the 2005 JPL against the government's first draft of the instrument.69

Crucially, the JPL as it was passed in 2005 incorporated language regarding victims' rights to truth, justice, and reparations—a starting point that helped victims gain a central role in all future transitional justice and peacemaking discussions. Colombia's own Constitutional Court determined that paramilitary assets should be expropriated to fund the material reparations owed to victims. The Court also ensured that the authorities administering the JPL were subject to investigation so that prosecutors and victims could corroborate the narratives of the law's applicants. Finally, the JPL replaced the lenient "alternative" punishments it had originally envisioned with reduced prison sentences, lasting five to eight years.

Unfortunately, the instrument still had several failings. First, under the JPL victims could gain reparations only by judicial proceedings. Thus, victims had to report a crime against paramilitaries who the state had already identified as gross violators of human rights.70 This was especially controversial in light of the close relationship between paramilitaries and the government. Further, the paramilitaries were not the only victimizers in the conflict; Colombians who suffered violence at the hands of the state or the guerrillas still had no way to see their rights vindicated. And even if victims reported a crime against a "state-approved" perpetrator—at great personal risk of paramilitary retaliation—they still needed to endure a time-consuming legal process in a time of conflict-induced institutional weakness. Only after a court had established culpability could victims seek restitution and damages. Because of these obstacles and risks, by 2008 the JPL had resulted in the compensation of a grand total of twenty-four victims.71

Further, the JPL did not condition leniency for ex-combatants on the effective restitution of their victims, despite speaking of a "general duty to repair."72 The JPL only obligated its applicants to relinquish illicitly-gained assets to the state, and paramilitaries could easily hide these assets via third parties.73 Consequently, Colombia's victims' reparation fund was dwarfed by the estimated reparations owed to victims of the AUC.

The success of combined transitional justice and peacemaking efforts depends on the success of both enterprises; the failure of one inevitably compromises the other. As a transitional justice tool, the JPL falls somewhere between an inadequate attempt to do justice and a blatant desecration of the justice itself. Additionally, the outcome of the JPL's peacemaking goals is problematic at best: while the AUC umbrella organization was dissolved, the structures of power and control it exerted did not disappear. The armed groups that arose after the official demobilization of the AUC maintain similar influences, especially over local politics.74 While so-called neo-paramilitaries like the post-AUC bacrim have not tried to remobilize officially, their camouflaged political influence, lasting illegal economies, and continuing violence highlight the shortcomings of the JPL when it comes to making peace.

Finally, a conflicted democracy such as Colombia may need not only "moral restoration"75 but also truly transformative reforms that address the roots of the conflict, empower disenfranchised groups, and dismantle structures of economic and political oppression. This need is especially strong with accountability and demobilization schemes designed for state-friendly actors such as paramilitaries. Indeed, failure to discriminate between the transitional justice instruments required for anti-state actors and pro-system actors such as the Colombian paramilitaries can explain many of the JPL's shortcomings.76 Disarming an anti-state actor constitutes a near total renunciation of power, but a state-friendly paramilitary group can relinquish its arms while retaining its power.77 A successful transitional justice scheme must uphold non-repetition guarantees by preventing the perpetrators of crimes from maintaining the victim-victimizer power dynamic. With state-friendly actors, there must be conscientious institutional reform and vetting—initiatives that were, of course, unappealing to many of the powerful state actors behind the JPL.

Reform to the Justice and Peace Law (Ley No. 1592, 2012)

The JPL, which relied on a slow and weakened judiciary to vindicate victims, proved ineffective in its application. According to the official Informe de Gestión published by the public prosecutor's office, only fourteen out of the 4,800 eligible ex-combatants that applied for consideration under the JPL had received final sentences as of 2013.78 The JPL experience was a lesson in the perils of overburdening a judiciary in the midst of conflict. In the context of the theoretical framework discussed above, the JPL's conception of transitional justice was too reliant on judiciary proceedings. It was neither holistic nor flexible enough to deliver on its justice and conflict resolution ambitions in the midst of ongoing conflict.

To remedy the situation, the Santos administration passed legislation in 2012 to redirect prosecutorial efforts to those "most responsible" for a set of serious and "representative" crimes. The verdicts obtained would then be applied to the ex-combatants in the JPL system subordinate to those "most responsible."79 This reform still focuses on individual accountability, but takes a pragmatic stance to what transitional justice can do in an ongoing conflict. It arguably also recognizes that a transition may require justice to act swiftly, even by selecting some cases for their symbolic impact.

Victims and Land Restitution Law (Ley No. 1448, 2011)

The JPL reparations mechanism also underwent revision. Already in 2008, the state had responded to international and domestic pressure and acknowledged its obligations to victims beyond the monetary compensation it could recoup from the AUC. Thus, it established a non-judicial, administrative process through which victims could apply for monetary compensation. The administration acted in "solidarity," however, rejecting any responsibility for the atrocities committed throughout the conflict—despite growing evidence of state collusion with the AUC and of the military's own hand in the violence.80 Unfortunately, the parallel options of judicial or administrative remedy made the process even harder to navigate. In 2012, Santos eliminated this largely unsuccessful mass-reparations scheme, obligating victims eligible under the JPL to seek reparations under the "Victims and Land Restitution Law" (VL), passed in 2011.81

The VL is the first well-known transitional justice instrument in Colombia that revolves entirely around victims' rights to reparations. It also represents a radical departure from previous legislation by endorsing transitional justice—and victims' rights in particular—as a means to promote peace. In force since 2012, the VL is an ambitious piece of legislation that seeks to provide reparations to victims of crimes that occurred after 1985 and land restitution for events that took place after 1991. Following the soft law adopted by the General Assembly on the right to remedy, the VL uses the language of "integral reparations,"82 consisting of restitution, compensation, satisfaction, and guarantees of non-repetition.83 The instrument also comprises other collective and individual measures seeking to strengthen the social norms eroded by the conflict, including symbolic reparation, the provision of social services, and the preservation of historical memory through oral accounts.

The VL crucially acknowledges the existence of an internal armed conflict, which introduces considerations of international humanitarian law and human rights law. The VL also shifts the responsibility for financial compensation to the state, thus recognizing that all victims of the conflict possess the aforementioned rights as well as special protections in judicial proceedings.84 In short, the state is taking responsibility as a party to the violence—a far cry from the "principle of solidarity" upon which the state took on some of the burden of reparations under the JPL. In effect, the VL's definition of victimhood is not perpetrator specific: those who suffered at the hands of the state's armed forces can use the same mechanism as the victims of the AUC and the left-wing guerrillas to seek reparations.

The VL is also novel in that it pays special attention to the problem of conflict-related land displacement. This is significant for several reasons. First, as mentioned above, approximately 12 percent of Colombia's population has suffered displacement. Second, land inequity and state neglect toward usurped and exploited peasant communities are among the very roots of civil strife in Colombia. In this sense, while the VL seeks restoration, it lays the groundwork for the transformative measures taken in the context of the peace negotiations with the FARC. Procedurally, the VL shifts legal presumptions regarding land ownership in favor of victims, and it establishes a well-crafted institution to oversee and adjudicate land restitution claims.

The VL is not without its limitations. The law's lofty ambitions have led to some perhaps inevitable disappointment and claims of "unfulfilled promises" made to the 5.7 million victims of land displacement.85 The VL also disqualifies former combatants of illegal armed groups and their relatives from benefiting from the legislation––failing to recognize that throughout the long conflict, many Colombians have been both victims and victimizers.86 Further, it is unclear whether victims of the bacrim, mostly remobilized paramilitaries, ought to fall under the category of "victims" of the armed conflict rather than merely victims of ordinary crime.87

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