Colombia's Opportunity for Transitional Justice

Colombia has had the longest internal armed conflict in the Western Hemisphere, which has delayed the development of a true democratic system where the government protects individual rights and liberties 1. The prolonged conflict is a consequence of opposing political ideologies, tremendous inequality, tension between the elites and the masses, scarce resources, and an unstable democratic government. Among the groups in conflict there are illegal armed groups, leftist groups, paramilitaries, drug traffickers, and the government.

This paper will focus on the extreme tension between the Colombian government, the Revolutionary Armed Forces of Colombia (FARC) and the Patriotic Union (UP) political party. Even though Colombia has been labeled a democratic country since the 1970s, its failure to successfully participate in transitional justice has inhibited the growth of a full democracy. In addition to explaining the tensions between the FARC, UP, and the Colombian government, this paper will explain how elements of transitional justice, such as the integration/demobilization of armed groups back into society and a platform for accountability, would result in a stronger democracy.

Since the 1970s, Colombia has experienced a civil war, guerrilla groups, violence, drug trafficking, and human rights violations, which demonstrates weakness in the democratic system. In this paper, the aim is to demonstrate how these tensions have slowed democratic progress and to argue that even though there seems to be a promising chance of achieving transitional justice through current peace talks, Colombia’s democracy remains bleak. I will begin by describing the background of the FARC and UP and the concept of transitional justice. This paper will conclude with the current state of the FARC, UP, and the outlook of Colombia’s future.

FARC and UP Background

The longest and most persistent conflict in Colombia is between the Colombian government and the FARC, which is the oldest surviving and richest leftist rebel group in South America. As of 2006, the FARC supplied half of the world’s cocaine, earning approximately $500-600 million per year 2. After La Violencia, a violent civil war lasting from 1948 to 1958, Colombia’s main two political parties agreed to the National Front Agreement, which stipulated that power would alternate between the parties every other election. This essentially shut out any participation from third parties.

After the Communist Party realized it was shut out from political participation, they officially established the FARC as their military wing in 1966 3.In order to end the conflicts between the FARC and the government, former President Betancur proposed La Uribe Agreement in 1984, which called for a ceasefire and technically allowed the FARC to become involved in politics. In 1985, the FARC, along with other left-ideological groups such as the Communist Party, announced the start of their own political party, Union Patriotica (UP). UP wanted greater land redistribution, decreased media censorship, and a greater voice for the poor. UP was able to gain various governmental positions 4. In 1986, they gained 350 local council seats, nine House seats, six Senate seats, and 5% of the presidential vote 5.

The growth of UP was halted by the beginning of systematic killings by the government. People feared UP’s connections with leftist ideologies and wanted to suppress its growth. Since the creation of UP was in the midst of the Cold War and America’s attempt to prevent the expansion of communism to the West, much of the Colombian public, and the government itself, feared that if UP grew as a political party this would lead to communism in Colombia. UP party members, as well as their families, were targeted and killed by governmental military groups and paramilitary groups. The paramilitary groups were extreme rightists. Because the social stigma with the UP party was that they were either communists or involved in the guerilla groups, there was no public scrutiny of these murders.

One survivor recalls that the Catholic Church did not even condemn the killings. After her husband’s murder, the archbishop prevented any priest from conducting Mass for him because he was deemed a communist 6. No accountability system existed for these killings. The systematic killings prevented progress on the peace talks that had begun to occur between the FARC and the government in the 1980s 7. The remaining head figures of the UP party sought asylum in other countries in the mid 1990s8. By the end of the 90s, UP membership was essentially nonexistent. Support diminished dramatically. At the height of its power in the mid 1980s, more than 320,000 votes were cast by UP supporters; yet by 2002 there were less than 50,000 9. The irony of these massive killings is the fact that from an outsider’s perspective, Colombia was a democratic government that withstood the 70s and the “lost decade” of the 1980s.

However, Colombian democracy is an illiberal democracy that holds elections but does not uphold civil rights. Latin American countries faced dual transitions in their political and economic spectrums after the late 1970s. Achieving the dual transition in the political aspect means first, a shift towards democracy, and second, the deepening of that democracy itself 10. Colombia never technically underwent this “dual transition” in the sense of shifting from a dictatorship toa democracy, which occurred in many other Latin American countries. Colombia was already a democracy before the 70s. The possibility of a democratic deepening during the dual transition did not occur either. The state of Colombia’s democracy was stagnant while other Latin America countries were changing from autocratic rule to democratic rule.

The Polity Score, which scales democracy from 1-10 (with 6-10 indicating democracy) for Colombia was seven in the 70s, an eight in the 1980s, and a seven in 2014 11. A score of ten indicates a full democracy, and scores from six to nine indicate a democracy. Colombia’s scores of seven and eight are expected because Colombia has been labeled a “democracy” since the 1970s. However, the quality of Colombian democracy itself did not significantly alter or improve in the last 50 years. The fact that Colombia emerged as the world’s leading cocaine producer in the 1980s negatively affected its economy through the 1980s and 1990s. On the economic spectrum of the dual transition, since 1979, Colombia’s annual GDP growth has been 2% lower than the annual growth between 1950 and 1980.

In the 1970s, the growth had been 5.8% per year, which many economists deemed as an economic success at least compared to Latin American counterparts 12. Worker productivity also declined during the 1980s because more capital and labor was directed towards drug trade and illegal activities. This differed from other Latin American countries, which began to ameliorate their economic conditions after the “Lost Decade.”

Transitional Justice

Democratic states have the responsibility to prevent human rights violations and uphold the inherent human rights that are mentioned in the Universal Declaration of Human Rights (a source of international law). The International Center for Transitional Justice (ICTJ) defines transitional justice as judicial and non-judicial actions taken in order to make amends for past human rights abuses within countries. These amends and reparations for past abuses further the idea of democratic states as the gatekeeper of human rights. Colombia has had more than 5.5 million human rights violations in the past 50 years 13. Due to these violations, Colombia ranks second only after Sudan in number of Internally Displaced Persons (IDPs).

These facts demonstrate that Colombia is not upholding its commitment to the protection of human rights. If Colombia were to make amends and reparations for past human right abuses, its commitment to human rights would be stronger not only within Colombia, but within the international community itself. Furthermore, addressing human rights violations is an importance step to building trust among the citizenry, an issue that Colombia continues to struggle with. Elements of transitional justice are not limited to but include criminal prosecutions, reparations, institutional reform, and truth commissions 14. The difficulty of achieving this type of justice lies in the fact that guerilla groups like the FARC are not the only ones violating human rights. The government is also the perpetrator.

Even though the government justified its targeting of the UP as a necessity in order to make Colombia a safer and stronger democracy, the killings they resorted to were blatant human rights violations. Under the Universal Declaration of Human Rights, people have the inherent right to life, liberty, and security. These rights are not protected for the Colombian people if joining a minority political party like UP ultimately means the possibility of death.

Attempts at Transitional Justice

The attempt to transition from war to peace can be observed in two parts of Colombian history. The first round of peace talks in the 1980s attempted to end the tensions of the FARC, UP, and the government. In 1982, former president Betancour proposed an amnesty law that allowed demobilization of guerilla groups without the need of disarmament 15. Then a ceasefirewas supposed to occur from 1984-1987 between the FARC and government, but neither event was successful because the FARC refused to demobilize and also because the government lashed out and killed UP members in the 80s. Because the growth of a new political party was publicly stopped by systematic killings, tension was high between the FARC, the Colombian government, and UP. There was no trust between political parties, paramilitaries, or the government, which led Colombia to fail at their attempt of transitional justice.

The second attempt at transitional justice has been occurring since former President Uribe’s administration (2002-2010) and continues with the Santos administration. Uribe targeted his efforts toward the demobilization of paramilitary groups, specifically the United Self Defense Forces (AUC) that had become involved with narcotrafficking. While some demobilization occurred, there are rumors that the AUC is still active in many parts of the country 16. After their apparent demobilization, new criminal gangs with past paramilitary members emerged. In 2005, Law 975 was passed and gave demobilized group members alternative sentences and ways to reenter civilian life. Under this law, if perpetrators gave reparations, their sentences would be reduced 17.

However, the process could not begin unless the victim came first and reported a crime, which rarely occurred due to fear. By 2008, only 24 people had been given reparations 18. In 2004 and 2010, the Constitutional Court reminded the government they had to provide land restitutions because the situations with the IPDs was unconstitutional 19. In 2010, Law 1424 established non-judicial truth seeking organizations that helped members in illegal groups get legal help in exchange for pertinent information that could help the government uncover truths about past conflicts. However, it must be noted that this law does not apply to those organizations that have committed crimes against humanity, which include the FARC.

President Uribe (2002-2010) differed from current President Santos because his approach was more aggressive in nature overall, while Santos really focused on peace talks with the FARC. Peace talks begun in 2012 in Cuba are still occurring today. The talks moved from its exploratory phase to formal phase, and the legal framework focuses on “(1) rural development and land policy; (2) political participation of the FARC; (3) ending the armed conflict including reinsertion into civilian life of rebel forces; (4) illicit crops and illegal drug trafficking; (5) victims’ reparations, and (6) the implementation of the finalnegotiated agreement, including its ratification and verification” 20. While the end date to these peace talks is unclear, this is the first time in Colombian history where the FARC seems to be formally embracing a new structure of formal peace 21.

Within the legal sphere, Santos continued supporting laws that aid the achievement of transitional justice. In 2011, after receiving Congressional approval, Santos signed into law the Victim’s Law, Law 1448. This law gives victims reparations and land distributions as well as the right to restitution for those who have lost their land or been displaced. It also formally defines the term “victim.” While victims do need a declaration and supporting evidence in order to obtain this legal status, Law 1448 gives victims the ability to become a formal player in legal procedures.

This law is the most serious attempt to achieve transitional justice because it recognizes victims’ rights and acknowledges an internal armed conflict, which had not been formally acknowledged in the past. Lastly, a constitutional amendment called the Legal Framework for Peace embraced other techniques of reaching transitional justice in order to achieve negotiations and peace 22. The most significant effect of this amendment is the creation of truth commissions to investigate grave human rights violations. By 2013, the Justice and Peace Tribunals, created by Law 975, had tried more than 2000 past paramilitaries. However, only fourteen had been sentenced 23. While these examples demonstrate advance for Colombia on its way to transitional justice, current facts demonstrate that in paper, progress seems to be occurring; yet in reality, implementation is a challenge.Continued on Next Page »