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From Cornell International Affairs Review VOL. 9 NO. 2 Transitional Justice in Ongoing Conflict: Colombia's Integrative Approach to Peace and Justice
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.
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
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.
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.
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.87Continued on Next Page »
Endnotes
- Maria Alexandra van Nievelt is a Chilean student pursuing a Master's degree in International Affairs with a concentration in international security policy. Alex's research focuses on civil war violence and comparative peace processes in Latin America.
- I am grateful to Professor Graeme Simpson for his guidance and feedback as I delved into this project. I also want to thank Elisabeth Wood, Francisco Gutiérrez Sanín, Ana Arjona, Roxane Cassehgari, and Juan Pablo Toro for sharing their expertise on the Colombian conflict.
- See the Glossary in Appendix 1 for the expansion of this and every important acronym hereafter.
- Juan Manuel Santos, "Statement by the President of the Republic of Colombia," Address before the General Assembly of the United Nations in its 68th Session, (New York: 24 September, 2013).
- Felipe Gómez Isa, "Justice, Truth and Reparation in the Colombian Peace Process," Norwegian Peacebuilding Resource Center (2013), http://peacebuilding.no/var/ezflow_site/storage/original/application/5e7c839d7cf77846086b6065c72d13c5.pdf.
- Rosario Figari Layús, The Role of Transitional Justice in the Midst of Ongoing Armed Conflict: The Case of Colombia, (Potsdam, Germany: Universitätsverlag Potsdam, 2010), 31.
- Graeme Simpson, "Transitional Justice and Peace Negotiations," International Center for Transitional Justice (discussion paper, 2008), 21.
- Catalina Díaz, "Colombia's Bid for Justice and Peace," Building a Future on Peace and Justice," Workshop 5 at the Building a Future on Peace and Justice Conference, (Nuremberg, Germany: June 25-27, 2007), 7, citing Ruth Teitel, "Law and Politics of Contemporary Transitional Justice," Cornell International Law Journal 38 (2005): 838-862.
- Álvaro Uribe Vélez, interview with the author, Yale University Podcast Video, November 7, 2012.
- Although quantitative analyses regarding the success rate of civil war mediation efforts are fraught with problematic claims regarding, among others, the definitions of an intrastate conflict and a mediation success, a generous analysis of 438 diplomatic interventions in 68 conflicts between 1945 and 1999 concluded that only 38% of mediations achieved full or partial settlement, although around 57% resulted in at least a temporary ceasefire. See Patrick Regan, Richard W. Frank and Aysegul Aydin, "Diplomatic Interventions and Civil War: A New Dataset," Journal of Peace Research 46:1 (2009): 135-46.
- Par Engstrom, "Transitional Justice and Ongoing Conflict," in Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants, ed. Chandra Lekha Sriram, et al. (London: Routledge, 2013), 41.
- Engstrom, "Transitional Justice and Ongoing Conflict," 46.
- Simpson, "Transitional Justice and Peace Negotiations," 7; Richard Ponzio, Democratic Peacebuilding: Aiding Afghanistan and other Fragile States (Oxford: Oxford University Press, 2011).
- Engstrom, "Transitional Justice and Ongoing Conflict," 43-44.
- Engstrom, "Transitional Justice and Ongoing Conflict," 44.
- María Paula Saffon and Rodrigro Uprimny, "Uses and Abuses of Transitional Justice in Colombia," Reprinted in Law and Peace Negotiations, ed. Morten Bergsmo and Pablo Kalmanovitz, Forum for International Criminal and Humanitarian Law (FICHL) Publication Series 5 (2007; Reprinted in 2009): 217-245, https://www.fichl.org/fileadmin/fichl/documents/Pre-TOAEP/090325_FICHL_5__law_in_peace_negotiations_.pdf.
- ICC Prosecutor Luis Moreno Ocampo has repeatedly argued that his office prevents and deters future violence, and has cited Cote d'Ivoire as evidence (see Luis Moreno Ocampo, "Building a Future on Peace and Justice," Keynote Address at the Building a Future on Peace and Justice Conference, [Nuremberg, Germany: June 2007], 25-27). He also has more generally stated that the ICC seeks to "reshape the norms of human conduct while violence is still ongoing, thus aiming, as stated in the Rome Statute, to contribute to the prevention of future crimes" (Moreno Ocampo, "Transitional Justice in Ongoing Conflicts," International Journal of Transitional Justice 1 (2007): 8-9, doi:10.1093/ijtj/ijm014). Practically speaking, the temporal jurisdiction of the ICC, which limits prosecutions to violations occurring after July 1, 2002, is a big part of why the court engages with ongoing conflict.
- Oskar N. T. Thoms, James Ron and Roland Paris, "State-level Effects of Transitional Justice: What Do We Know," International Journal of Transitional Justice (2010): 1-26; Oskar N. T. Thoms, James Ron and Roland Paris, "The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners," Centre for International Policy Studies Working Paper (April, 2008).
- Saffon and Uprimny, "Uses and Abuses of Transitional Justice in Colombia," 235.
- Simpson, "Transitional Justice and Peace Negotiations," 7.
- Ibid., 3.
- Ibid., 4.
- Ibid., 7.
- Ibid., 6.
- Colm Campbell and Fionnuala Ni Aolain, "The Paradox of Transition in Conflicted Democracies," Human Rights Quarterly 27 (2005): 175.
- Figari Layús, Transitional Justice, 18-47; Rodrigo Uprimny Yepes, "Transitional Justice Without Transition? Possible Lessons From the Use and (Misuse) of Transitional Justice Discourse in Colombia," Paper presented at the Building a Future on Peace and Justice Conference, (Nuremberg, Germany: June 25-27, 2007), http://www.peace-justice-conference.info/download/ws 5 - expert paper - uprimny.pdf.
- Figari Layús, Transitional Justice, 24-5, 30.
- María Paula Saffon and Rodrigo Uprimny, Plan Nacional de Desarrollo y Reparaciones. Propuesta de un programa nacional masivo de reparaciones administrativas para las víctimas de crímenes atroces en el marco del conflicto armado, (Bogotá, Colombia: DejuSticia, 2007).
- Figari Layús, Transitional Justice, 29; Saffon and Uprimny, Plan Nacional de Desarrollo y Reparaciones.
- Saffon and Uprimny, Plan Nacional de Desarrollo y Reparaciones.
- Nelson Camilo Sánchez and Rodrigo Uprimny, "Transitional Justice Without Transition? The Colombian Experience in the Implementation of Transition Measures," in InterAmerican Institute of Human Rights, Contribution of Truth, Justice, and Reparation Policies to Latin American Democracies (San José: Inter-American Institute of Human Rights, 2011), 143.
- Saffon and Uprimny, "Uses and Abuses of Transitional Justice in Colombia," 236.
- Saffon and Uprimny, "Uses and Abuses of Transitional Justice in Colombia."
- Ruti Teitel, "Law and Politics of Contemporary Transitional Justice," Cornell International Law Journal 38 (2005): 838-862.
- Figari Layús, Transitional Justice, 31, citing Saffon and Uprimny, "Uses and Abuses of Transitional Justice in Colombia."
- Saffon and Uprimny, "Uses and Abuses of Transitional Justice in Colombia"; Engstrom, "Transitional Justice and Ongoing Conflict," 50, 53.
- Adriana Rincón Villegas, "Transitional Justice in Ongoing Conflicts: The Case of Colombia" (master's thesis, University of Georgia, 2015), 7.
- Jemima García-Godos, "Colombia: Accountability and DDR in the Pursuit of Peace?" in Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants, ed. Chandra Lekha Sriram et al. (New York: Routledge, 2013).
- Ana M. Arjona and Stathis Kalyvas, "Recruitment into Armed Groups in Colombia," in Understanding Collective Political Violence, ed. Yvan Guichaoua (Houndmills, Basingstoke: Palgrave Macmillan, 2012), 143-71.
- Marc Chernick, "Negotiating Peace amid Multiple Forms of Violence: The Protracted Search for a Settlement to the Armed Conflicts in Colombia," in Comparative Peace Processes in Latin America, ed. Cynthia Arnson (Washington, D.C.: Woodrow Wilson Center Press, 1999), 162.
- Nazih Richani, Systems of Violence: The Political Economy of War and Peace in Colombia, (Albany: State University of New York Press, 2002), 62-64.
- Paul Wolf, "ELN and University Violence 1965-1973," http://www.icdc.com/~paulwolf/colombia/universityviolence.htm#eln.
- García-Godos, "Colombia: Accountability and DDR in the Pursuit of Peace?" 221.
- Jeremy M. Weinstein, Inside Rebellion: The Politics of Insurgent Violence, (Cambridge: Cambridge University Press, 2007), 293; Juan Guillermo Ferro Medina and Graciela Uribe Ramón, El Orden de la Guerra, las FARC-EP: Entre la Organización y la Política (Bogotá: Centro editorial Javeriano, CEJA, 2002).
- Christopher Thornton and Rainer Gude, "Towards Peace in Colombia: The Economic Obstacles to a Colombian Peace Process," Peace & Conflict Review 5:2 (2011): 5.
- UCDP Conflict Encyclopedia. "Colombia," Uppsala University Department of Peace and Conflict Research.
- Carlos Medina, Autodefensas, Paramilitares y Narcotráfico en Colombia: Orígen, Desarrollo y Consolidación, (Bogotá: Editorial Documentos Periodísticos, 1990).
- Comisión Interamericana de Derechos Humanos (CIDH), "Violencia y la Violación del Derecho Internacional de los Derechos Humanos y el Derecho Internacional Humanitario," in Colombia Country Report 1999, Chapter 4, http://www.cidh.org/countryrep/Colom99sp/capitulo-4e.htm.
- Adriaan Alsema, "37 Colombian Congressmen, 5 Governors Convicted for Ties to Paramilitaries," Colombia Reports, (May 16, 2013); Sam Logan and Tatiana García, "Paramilitary Politics: A Colombian Reality," International Relations and Security Network (2006), http://www.isn.ethz.ch/isn/Digital-Library/Articles/Detail/?lng=en&id=108000.
- Stephanie Hanson, "Colombia's Right-Wing Paramilitaries and Splinter Groups," Council on Foreign Relations (CFR), (11 January, 2008), http://www.cfr.org/colombia/colombias-right-wingparamilitariessplinter-groups/p15239.
- Villegas, "Transitional Justice in Ongoing Conflicts: The Case of Colombia," 4.
- Sam Goffman, "Colombia: Paramilitaries Get Sweetheart Deal," NACLA Report on the Americas 39:2 (2005): 50-1.
- Saffon and Uprimny, "Uses and Abuses of Transitional Justice in Colombia," 223-24.
- Comisión Nacional de Reparación y Reconciliación (CNRR), "Disidentes, Rearmados y Emergentes: ¿Bandas Criminales o Tercera Generación Paramilitar?" (2007).
- Sally Palomino, "Las Bacrim tendrían unos seis mil hombres, en seis estructuras," La Semana (January 18, 2011).
- Jeremy McDermott, "Colombia's Criminal Bands Pose New Security Challenge," BBC News, (April 25, 2011).
- "Las bacrim cometen la mitad de los asesinatos en Colombia," Infobae (January 26, 2011).
- Villegas, "Transitional Justice in Ongoing Conflicts: The Case of Colombia," 4.
- United Nations High Commissioner for Refugees (UNHCR), "Colombia: 2015 UNHCR country operations profile," (2005) http://www.unhcr.org/pages/49e492ad6.html.
- International Crisis Group (ICG), Transitional Justice and Colombia's Peace Talks, Latin America Report N°49, (August 29, 2013), ii.
- United Nations Office for the Coordination of Humanitatian Affairs (OCHA), "Fondo de Respuesta a Emergencias – Colombia," Informe Segundo Trimestre (2014), 1.
- Colombian Constitution of 1991, Art. 93.
- ICG, Transitional Justice and Colombia's Peace Talks, 6-7.
- The Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity was formulated by UN expert Louis Joinet in 1997, and updated by Diane Orentlicher in 2005; Gustavo Gallón, "Human Rights in Crisis: The Case of Colombia Lecture at the School of International Relations of the University of Saint Andrews," (November 14, 2013), http://www.coljuristas.org/documentos/adicionales/speech_st_andrews_2013-11-14.pdf.
- ICG, Transitional Justice and Colombia's Peace Talks, 7; Sánchez and Uprimny, "Transitional Justice Without Transition? The Colombian Experience in the Implementation of Transition Measures," 12-13.
- "Ley No. 975," Official Website of the Presidency of Colombia (July 25, 2005), http://wsp.presidencia.gov.co/.
- ICG, Transitional Justice and Colombia's Peace Talks, 4.
- Saffon and Uprimny, "Uses and Abuses of Transitional Justice in Colombia," 229.
- Nicole Summers, "Colombia's Victims' Law: Transitional Justice in a Time of Violent Conflict?" Harvard Human Rights Journal 25:1 (2012): 225.
- Because Uribe's government did not recognize the existence of an international armed conflict in Colombia, the national legislation from this period does not speak of violations of international humanitarian law, i.e. war crimes.
- Diana Esther Guzmán et al., "Colombia," Las Víctimas y la Justicia Transicional: ¿Están Cumpliendo los Estados Latinoamericanos con los Estándares Internacionales? (Washington, DC: Fundación para el Debido Proceso Legal, 2010), 109; Summers, "Colombia's Victims' Law: Transitional Justice in a Time of Violent Conflict?" 224.
- Díaz, "Colombia's Bid for Justice and Peace," Building a Future on Peace and Justice," 16.
- Ibid., 17-18.
- "Los intereses electorales de las Bacrim," La Semana (October 10, 2011).
- In the admittedly not unbiased words of Luciano Marín, aka Iván Márquez, one of the FARC's representatives in Havana; "Farc llama a Gobierno a eliminar trabas jurídicas para la paz," El Espectador (March 26, 2015).
- Saffon and Uprimny, "Uses and Abuses of Transitional Justice in Colombia."
- Uprimny, "Transitional Justice Without Transition? Possible Lessons From the Use and (Misuse) of Transitional Justice Discourse in Colombia," 4-5.
- "Informe de Gestión 2012-2013," Fiscalía General de la Nación, (March 2013).
- "Ley No. 1592," Official Website of the Presidency of Colombia (December 3, 2012), http://wsp.presidencia.gov.co/.
- A well-known example of the military's abuses is the "false positives" scandal, which revealed the practice—spurred on by perverse incentives stemming from rewarding high body counts—of murdering civilians to pass off them off as "combat killings." (See Adam Isacson, "Ending 50 Years of Conflict: The Challenges Ahead and the U.S. Role in Colombia," Washington Office on Latin America (2014): 8, http://www.wola.org/).
- "Ley No. 1448," Official Website of the Presidency of Colombia (December 3, 2011), http://wsp.presidencia.gov.co/.
- "Ley No. 1448," Official Website of the Presidency of Colombia, Art. 21 cf. United Nations Commission on Human Rights, "United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law" (UNBPG), (2005), UN Doc E/ CN.4/RES/2005/35, I.2.c.
- "Ley No. 1448," Official Website of the Presidency of Colombia, Art. 25 cf. UNBPG IX
- Sánchez and Uprimny, "Transitional Justice Without Transition? The Colombian Experience in the Implementation of Transition Measures," 134.
- ICG, Transitional Justice and Colombia's Peace Talks, 37.
- Summers, "Colombia's Victims' Law: Transitional Justice in a Time of Violent Conflict?" 226.
- Sánchez and Uprimny, "Transitional Justice Without Transition? The Colombian Experience in the Implementation of Transition Measures," 134.
- "Acto Legislativo No. 1," Official Website of the Presidency of Colombia (July 31, 2012), http://wsp.presidencia.gov.co/.
- All subsequent quotations are taken from the original text (see Appendix 2). All translations are my own.
- Felipe Gómez Isa, "Justice, Truth and Reparation in the Colombian Peace Process," 2.
- Nelson Camilo Sánchez and Rodrigo Uprimny Yepes, "El Marco Jurídico Para La Paz: ¿Cheque En Blanco O Camisa De Fuerza Para Las Negociaciones De Paz?" in Justicia Para La Paz: Crímenes Atroces, Derecho a La Justicia Y Paz Negociada, ed. Rodrigo Uprimny Yepes, Luz María Sánchez Duque and Nelson Camilo Sánchez León (Bogotá, Colombia: Centro de Estudios de Derecho, Justicia y Sociedad, Dejusticia, 2014), 184.
- Sánchez and Uprimny, "El Marco Jurídico Para La Paz,".
- Gómez Isa, "Justice, Truth and Reparation in the Colombian Peace Process," 2; Sánchez and Uprimny, "Transitional Justice Without Transition? The Colombian Experience in the Implementation of Transition Measures."
- Sánchez and Uprimny, "El Marco Jurídico Para La Paz."
- "Everyone Throwing Their Support Behind Colombia's Peace Process," Telesur (January 22, 2016), http://www.telesurtv.net/english/news/Everyone-Throwing-Their-Support-BehindColombias-Peace-Process-20160122-0020.html.
- It should be noted that the FARC has rejected the term "disarmament" arguing that the term does not apply, as it has not been defeated militarily. The peace process has chosen the language of dejación de armas ("leaving weapons behind") to refer to the FARC's voluntary disarmament and disbandment as a guerrilla group. This careful word choice follows that of the Northern Ireland peace process, which spoke of decommissioning rather than disarming combatants.
- Rose Lander, "Colombia will Vote on FARC Peace Deal in May or June: Santos," Colombia Reports (November 12, 2015), http://colombiareports.com/how-should-colombia-ratify-thepeacedeal/
- United Nations High Commissioner for Human Rights. "Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Colombia," (2013), UN Doc A/HRC/22/17/Add.3, 18.
- Natalio Cosoy, "En qué consiste el pacto entre las FARC y el gobierno de Colombia que los deja a un paso de la paz," BBC. (September 24, 2015), http://www.bbc.com/mundo/noticias/2015/09/150923_colombia_farc_santos_acuerdo_paz_la_habana_ao.
- "9 Unanswered Questions About Colombia's Victims and Justice Accord," Washington Office on Latin America, (2015), http://colombiapeace.org/2015/12/23/9-unanswered-questions-aboutcolombiasvictims-and-justice-accord/.
- Guáqueta, "Political and Economic Dimensions of the Colombian Conflict," 3.
- Chernick, "Negotiating Peace amid Multiple Forms of Violence," 159-95.
- United Nations High Commissioner for Human Rights, UN Doc A/HRC/22/17/Add.3, 18.
- Villegas, "Transitional Justice in Ongoing Conflicts: The Case of Colombia," 7, quoting Eduardo Pizarro, "Reparando el bote en altamar," in Ley de Justicia y Paz (Bogotá, Colombia: Norma, 2009).
Appendix 1: List of Acronyms
AUC: Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia) is an umbrella organization of far-right paramilitary groups in Colombia, each intending to protect their local political, economic and social interests by fighting left-wing insurgent groups in their regions. While the AUC was officially demobilized in 2006, some local successors remain.
Bacrim: Bandas criminales emergentes, criminal bands.
CNRR: Comisión Nacional de Reparación y Reconciliación was created under the 2005 Justice and Peace Law. The Commission, which operated for eight years, was tasked with publishing a report on the causes of the Colombia internal conflict and the emergence of armed groups.
DDR: Disarmament, Demobilization, and Reintegration.
FARC, or FARC-EP: Las Fuerzas Armadas Revolucionarias de Colombia Ejército del Pueblo (Revolutionary Armed Forces of Colombia Army of the People) is Colombia's main left-wing insurgent group. A Marxist-Leninist revolutionary guerrilla, the FARC opposes Colombia's central government advocating agrarianism and anti-imperialism, and has been involved in the ongoing armed conflict since the group's foundation in 1964.
ELN: The Ejército de Liberación Nacional (National Liberation Army) is Colombia's less known remaining left-wing guerrilla. The ELN's Communist political platform is a combination of Marxism and Liberation Theology. Also established in 1964, the ELN as an organization is an outgrowth of university unrest, founded by Colombian rebels trained in Communist Cuba, and later by a series of Catholic priests, advocates of Liberation Theology.
ICC: The International Criminal Court, which sits in the Hague in the Netherlands, is an international tribunal with jurisdiction over the international crimes of genocide, crimes against humanity, and war crimes. Its jurisdiction is governed by the Rome Statute. Colombia, which has ratified the Rome Statute, accepts the jurisdiction of the ICC over crimes against humanity and genocide from 2002 onwards and over crimes of war from 2009 onwards.
JPL: Ley de Justicia y Paz (Justice and Peace Law) was Colombia's first transitional justice instrument, passed in 2005 under the Uribe regime.
M-19 Movimiento 19 de Abril (April 19th Movement) was a Colombian guerilla movement. It was the second largest guerilla group in Columbia by mid-1985, but was demobilized in the late 1980s. After its demobilization, it formed the political party M-19 Democratic Alliance, or AD/M-19.
VL: The Victims and Land Restitution Law is Colombia's first well-known transitional justice instrument in Colombia that revolves entirely around victims' rights to reparation. It has been in forced since 2012.
Appendix 2: The Legal Framework for Peace
Appendix 3: Exc erpts From the Negotiation Agenda105
General Agreement for the Termination of the Conflict and the Construction of a Stable and Lasting Peace
The delegates of the Government of the Republic of Colombia (National Government) and the Revolutionary Armed Forces of Colombia-People's Army (FARCEP):
As a result of the Exploratory Meeting held in Havana, Cuba, between 23 February 2012 and 26 August 2012, that counted on the participation of the Government of the Republic of Cuba and the Government of Norway as guarantors, and on the support of the Government of the Bolivarian Republic of Venezuela as facilitator of logistics and companion:
With the mutual decision to put an end to the conflict as an essential condition for the construction of stable and lasting peace;
Attending the clamor of the people for peace, and recognizing that:
- construction of peace is a matter for society as a whole that requires the participation of all, without distinction, including other guerrilla forces that we invite to join this effort;
- respect of human rights within the entire national territory is a purpose of the State that should be promoted;
- economic development with social justice and in harmony with the environment is a guarantee for peace and progress;
- social development with equity and well-being that includes big majorities allows growing as a country;
- a Colombia in peace will play an active and sovereign role in peace as well as regional and worldwide development;
- it is important to broaden democracy as a condition to build solid foundations for peace.
With the government's and FARC-EP's full intention to come to an agreement, and the invitation to the entire Colombian society, as well as to the organisations of regional integration and the international community to accompany this process;
WE HAVE AGREED:
1. To initiate direct and uninterrupted talks about the points of the agenda established here thatare aimed at reaching a Final Agreement for the termination of the conflict that will contribute to the construction of stable and lasting peace.
2. To establish a Table of Talks that will be opened publicly in Oslo, Norway, within the first two weeks of October 2012 and whose main seat will be Havana, Cuba. Meetings can take place in other countries.
3. To guarantee the effectiveness of the process and conclude the work on the points of the agenda expeditiously and in the shortest time possible, in order to fulfill the expectations of society for a prompt agreement. In any case, the duration will be subject to periodic evaluations of progress.
4. To develop the talks with the support of the governments of Cuba and Norway as guarantors and the governments of Venezuela and Chile as accompaniers. In accordance with the needs of the process and subject to common agreement, others may be invited.
5. The following agenda:
1. Integrated agricultural development policy
Integrated agricultural development is crucial to boost regional integration and the equitable social and economic development of the country.
1. Access and use of land. Wastelands/unproductive land. Formalisation of property. Agricultural frontier and protection of reservation zones.
2. Development programs with territorial focus.
3. Infrastructure and land improvement.
4. Social development: health, education, housing, eradication of poverty.
5. Stimulus for agricultural production and for solidarity economy and cooperatives. Technical assistance. Subsidies. Credit. Generation of income. Marketing. Formalisation of employment.
6. Food security system.
2. Political participation
1. Rights and guarantees for exercising political opposition in general and for the new movements that emerge after signature of the Final Agreement. Media access.
2. Democratic mechanisms for citizen participation, including direct participation, on different levels and on diverse issues.
3. Effective measures to promote greater participation of all sectors in national, regional and local politics, including the most vulnerable population, under conditions of equality and with security guarantees.
3. End of the conflict
Comprehensive and simultaneous process that implies:
1. Bilateral and definitive ceasefire and end of hostilities.
2. Handover of weapons. Reintegration of FARC-EP into civilian life, economically, socially and politically, in accordance with their interests.
3. The National Government will coordinate revising the situation of persons detained, charged or convicted for belonging to or collaborating with FARC-EP.
4. In parallel, the National Government will intensify the combat to finish off criminal organisations and their support networks, including the fight against corruption and impunity, in particular against any organisation responsible for homicides and massacres or that targets human rights defenders, social movements or political movements.
5. The National Government will revise and make the reforms and institutional adjustments necessary to address the challenges of constructing peace.
6. Security guarantees.
7. Under the provisions of Point 5 (Victims) of this agreement, the phenomenon of paramilitarism, among others, will be clarified. The signing of the Final Agreement initiates this process, which must be carried out within a reasonable period of time agreed by the parties.
4. Solution to the problem of illicit drugs
1. Illicit-crop substitution programs. Integral development plans with participation of communities in the design, execution and evaluation of substitution programs and environmental recovery of the areas affected by these crops.
2. Consumption prevention and public health programs.
3. Solution to the phenomenon of narcotics production and commercialization.
5. Victims
Compensating the victims is at the heart of the agreement between the National Government and FARC-EP. In this respect, the following will be addressed:
1. Human rights of the victims.
2. Truth.
6. Implementation, verification and ratification
The signing of the Final Agreement initiates the implementation of all of the agreed points.
1. Mechanisms of implementation and verification:
- System of implementation, giving special importance to the regions.
- Verification and follow-up commissions.
- Mechanisms to settle differences.
These mechanisms will have the capacity and power of execution and will be composed of representatives of the parties and society, depending on the case.
1. International accompaniment.
2. Schedule.
3. Budget.
4. Tools for dissemination and communication.
5. Mechanism for ratification of the agreements.
Signed on 26 August 2012, in Havana, Cuba.
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APA 6th
van Nievelt, M. A. (2016). "Transitional Justice in Ongoing Conflict: Colombia's Integrative Approach to Peace and Justice." Cornell International Affairs Review, 9(2). Retrieved from http://www.inquiriesjournal.com/a?id=1416
MLA
van Nievelt, Maria A. "Transitional Justice in Ongoing Conflict: Colombia's Integrative Approach to Peace and Justice." Cornell International Affairs Review 9.2 (2016). <http://www.inquiriesjournal.com/a?id=1416>
Chicago 16th
van Nievelt, Maria A. 2016. Transitional Justice in Ongoing Conflict: Colombia's Integrative Approach to Peace and Justice. Cornell International Affairs Review 9 (2), http://www.inquiriesjournal.com/a?id=1416
Harvard
VAN NIEVELT, M. A. 2016. Transitional Justice in Ongoing Conflict: Colombia's Integrative Approach to Peace and Justice. Cornell International Affairs Review [Online], 9. Available: http://www.inquiriesjournal.com/a?id=1416
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