Transitional justice before transition
At the turn of the millennium, few would have thought of Colombia as a case study for transitional justice experiences. The country was immersed in a protracted armed conflict marked by numerous atrocities, with millions of internally displaced people. Prospects for peace seemed distant, and for accountability, even more so. Nevertheless, Colombia began a transitional justice process in the mid-2000s, linking the demobilisation of illegal armed groups to the rights of victims – at the same time and through the same legal instrument, the Justice and Peace Law. The law’s initial implementation was monitored and partly led by the newly created Commission for Reparation and Reconciliation (Comisión Nacional de Reparación y Reconciliación, CNRR). Other measures followed to address the law’s limitations and the demands from victims’ organisations.
Today, Colombia illustrates the many challenges involved in seeking accountability for past human rights violations in the context of ongoing conflict and incomplete peace negotiations. These challenges include legal issues (Colombia is the only country in Latin America where the International Criminal Court has opened a preliminary investigation) as well as political and humanitarian considerations. This chapter provides an overview of how transitional justice mechanisms have developed in Colombia over the past decade. It highlights critical issues related to both accountability and impunity that have arisen from the partial implementation of specific measures as an integral part of ongoing peace negotiations for an end to conflict.
The Colombian experience demonstrates that a reconceptualisation of transitional justice is timely and due. On the one hand, the consolidation of normative standards in recent decades means that the peace negotiations in Colombia necessarily differ from those that occurred in Guatemala and El Salvador in the 1980s. On the other hand, the diversity of opposing parties – guerrillas and paramilitaries – and the adoption of transitional measures before the end of the conflict mean that Colombia faces practical and conceptual challenges that are distinct from those affecting its regional neighbours.
Background to the transitional justice process
The current armed conflict in Colombia dates back to 1964, when the first communist guerrilla groups were established: the FARC-EP (Revolutionary Armed Forces of Colombia – People’s Army), ELN (National Liberation Army), and EPL (Popular Liberation Army) (Offstein 2003). In the 1970s, these groups were joined by a second wave of guerrillas, most of whom demobilised by 1990. FARC-EP (known as FARC) and ELN remain operative today, the former being the most important guerrilla group in terms of members and operations.
In response to the insurgent violence, businessmen and landowners sponsored the creation of right-wing self-defence groups. In the 1990s, the groups restructured themselves as modern paramilitary forces under the banner United Self-Defence Forces of Colombia (Autodefensas Unidas de Colombia, AUC), developed from a legal framework known as Convivir.1 Over time, the paramilitary groups consolidated territorial control and started to engage and displace the guerrillas. This was followed by a shift in the balance of power within the paramilitary groups from the original leadership asserted by rural elites to military commanders. The military expansion of the paramilitaries was accompanied by their incursion into formal politics. The areas under their control became strictly regulated, and the official decentralisation process of the 1990s had the unintended effect of tightening their grip on local and regional political institutions. By controlling local constituencies, the paramilitaries also gained access to national politics. The state considered them allies in the anti-guerrilla effort and thus made no objection to their growing military and political power (Duncan 2006; Abdala, González, and González 2008).
President Álvaro Uribe took office in August 2002 pledging to engage in heavy combat against the guerrillas. In December 2002, the AUC declared a unilateral ceasefire, a government precondition for talks with any of the armed groups. Negotiations were formalised on 15 July 2003 with the Santa Fe de Ralito Accord, in which AUC leaders agreed to demobilise fully by the end of 2005.2 According to official sources, a total of 31,671 members of paramilitary groups had demobilised by August 2006, mostly through collective demobilisation (Alto Comisionado para la Paz 2006).3
Although these numbers are impressive, there are continuing reports that armed groups or criminal gangs (bandas criminales) are present in various parts of the country, pursuing operations similar to those of the former paramilitaries (OAS 2010; CNRR 2007). Their presence threatens the security of victims and witnesses participating in the transitional justice process, setting clear limits to the effectiveness of protection measures. While these armed groups show diversity in form, structure, membership, and operations, they also share some common features: use of extortion and violence, abuse of power, and links to criminal activities such as drug trafficking. There is also evidence that the groups often operate with the direct or indirect support of local public officials and members of the police and armed forces (CNRR 2007). In what has been dubbed the parapolítica scandal, a process of judicial investigation was started in 2006 against 32 (of 102) members of the Colombian Senate on charges of collusion with the former paramilitary groups. This investigation has become an important source of information about the involvement of paramilitary forces in the political arena.
The transitional justice process in Colombia, therefore, is closely intertwined with the negotiation and implementation of peace settlements and the demobilisation of illegal armed groups. These complex processes engage not only the national executive and legislature and the leaders of the armed groups, but also the Colombian judiciary and a wide range of other actors, including civil society groups with a focus on human rights, victims’ rights, and peacemaking. International organisations, both inter-governmental and non-governmental, particularly those focused on human rights, peacebuilding, or transitional justice, also influence the debate (García-Godos and Lid 2010).
More than in some other country cases, the transitional justice (TJ) process in Colombia is anchored in the legal system. Colombia has a deeply rooted legalist culture, emphasising the use of legal instruments and judicial processes to regulate most aspects of social, political, and institutional life. As we will see below, TJ in Colombia has been carefully designed and embedded in successive legal instruments, starting with the Justice and Peace Law in 2005 and including, most recently, the Legal Framework for Peace in 2012. The Colombian Constitutional Court is a principal institutional actor in this legalist culture. Through its jurisprudence, the Court has played a key role in the protection of citizens’ rights as well as on issues of governance and public policy. The Constitutional Court’s oversight, modification, and approval of transitional justice measures has been instrumental in establishing the constitutionality and legitimacy of a TJ agenda.4
This agenda occupies a central place in domestic politics. Since the announcement of peace talks in September 2012, the government and the FARC guerrillas have agreed to discuss a six-point agenda: (1) agrarian development; (2) guarantees for the exercise of political opposition and citizen participation; (3) the end of armed conflict; (4) drug trafficking; (5) the rights of the victims of the conflict; and (6) implementation of the agreement. As of January 2016, agreements had been reached on agrarian development, drug trafficking, political participation, and victims’ rights. The FARC and the government continue to work towards an accord on the remaining points with a view to concluding a comprehensive peace treaty, supported by the international community, particularly by other Latin American governments.
Notably, there have been disagreements with international bodies such as the Office of the Prosecutor of the International Criminal Court (ICC) regarding justice matters in the accord. There are also doubts as to whether the Inter-American Court of Human Rights will find the formula of prosecuting the most responsible perpetrators of international crimes (rather than all perpetrators) to be in accord with its jurisprudence. Both the ICC prosecutor and the inter-American system have monitored the process closely, but have not provided any substantive and definitive judgment on its compliance with international standards.
Criminal accountability in Colombia: amnesties and trials as a two-pronged strategy
In Colombia, the traditional choice between blanket amnesties and full criminal accountability, as opposite extremes, has been called into question. Although Colombian society rejects the notion of impunity, the consensus view also highlights the risks of implementing excessively punitive transitional measures that would hinder the efforts to reach a negotiated peace (El País 2013).
Within Colombia, the question was first raised in general terms: whether the application of punitive standards that were developed mainly to deal with post-dictatorship situations is feasible, or even desirable, during or after transition from armed conflict. Following a regional trend towards hardening punitive standards and prohibiting certain methods of amnesty that perpetuate impunity,5 academic and political circles in Colombia have recently leaned towards establishing adequate judicial resources for the prosecution of the gravest crimes, even before the end of conflict.
Influence from local and international human rights organisations during the negotiation of the demobilisation framework in the mid-2000s was essential in achieving an absolute prohibition against amnesties for grave human rights violations and infractions of international humanitarian law. Further discussion concentrated on how to determine the mechanisms for prosecution, with the understanding that all such actions as well as all perpetrators of these most serious crimes must be brought to justice.
The legislative process culminated with the passage of Law 975 of 2005, known as the Justice and Peace Law.6 This served as a framework for the demobilisation of the AUC under a sui generis model, referred to as the justice and peace model, for handling of the gravest violations. The law provided, first, that criminal trials as a transitional mechanism should only be used to punish the worst crimes, leaving open the possibility of amnesties or pardons for other crimes committed as a result of the conflict. Second, it introduced a procedure for prioritisation and management of cases under the control of the executive branch. The executive could initiate this process by presenting lists of demobilising individuals to the Attorney General’s Office (Fiscalía General de la Nación), to be followed by investigations based on the declarations of demobilising individuals involving serious crimes. Third, in balancing the imperatives of justice and peace, the model prioritised peace over justice only in the proportionality and duration of the sentence, not in attributing responsibility or in the judgment. In other words, contrary to a model of total amnesty, the Justice and Peace Law was generous in the reduction of sentences, but kept the commitment that all of the accused would be liable for punishment by a prison sentence.
With an overwhelming number of potential cases, it was necessary to be selective: the model could not work if every case was to be processed through this system. Accordingly, of the more than 31,000 non-state combatants who laid down their arms by 2006, the policy only applied to those who voluntarily decided to participate, were ready to confess their participation in atrocity crimes, and had no pre-existing, outstanding criminal charges against them. At the time, this included approximately 3,500 people, who were known as postulados. The rest of the demobilised – those for whom no charges for atrocity crimes existed at the time – would be reincorporated into society through an amnesty model recognised by the constitution for political offenders. The model relied mostly on the collaboration of ex-combatants because the state had little information on their acts, therefore few judicial investigations and even fewer convictions occurred.
This mechanism, however, faced strong political opposition and legal challenges. First, victims’ organisations pointed out that because the state had hardly any information on events that had happened during the conflict, this plan established a sort of hidden amnesty for those combatants who did not confess their crimes. The organisations contended that the state had the duty to investigate each case before granting any type of amnesty or reduced sentence.7 Second, the political offence provision, which assumed that the paramilitaries had been political offenders, was strongly condemned by the Colombian higher courts. They found that the crime of sedition could not be applied to members of paramilitary groups because they had worked as pro-regime armed actors, not against the system, which is the general understanding of a political offence.8
In light of these issues, an additional challenge arose: how to create a mechanism capable of guaranteeing a review of each case in order to prevent atrocious crimes from being ignored, but at the same time, simple enough to avoid overburdening the criminal system to the point of inefficiency. In 2009, the government of President Álvaro Uribe devised a creative procedure based on an ordinary provision of criminal law in the adversarial system. They suggested using prosecutorial discretion to stop criminal proceedings for those cases which, for criminal policy reasons, were not in the interests of justice. Congress then passed a new law, Law 1312 of 2009, which included disarmament in a peace process and provision of reparations to victims as new factors for consideration in the use of prosecutorial discretion. However, the law clarified that prosecutorial discretion could not be invoked in cases considered to be atrocious crimes under international law.
The human rights and victims’ organisations that had campaigned against impunity for human rights violations were not fully satisfied by this change. They considered the use of prosecutorial discretion to be an abdication of the state’s duty to investigate and prosecute. This would be, in their opinion, a form of disguised amnesty. Using this argument, they brought a case against the legitimacy of the proposal before the Constitutional Court.
The Court ruled in favour of the victims’ organisations in a divided decision (Judgment C-936) in 2010. This ruling pushed the state towards full investigation and prosecution of all offences and combatants, an approach that many argued would overemphasise the punitive approach in the transitional process. Furthermore, it triggered a crisis in the demobilisation process, as the initial agreements reached by the government with the demobilised paramilitary groups had not included the prospect of prosecution of all demobilised ex-combatants.9
By then, the justice and peace process had been in place for more than five years, but its results were poor. In practical terms, processing thousands of pending cases through the system was virtually impossible. The previous public policy challenge – how to establish an efficient mechanism – was overshadowed by a technical–legal problem: how to interpret the normative standard to allow for a method that did not violate the decision adopted by the Constitutional Court.
Given the tradition of adherence to international standards, the debate did not start, as it had in other countries in the region, with the question of whether or not there was a legal obligation for the state to prosecute the most serious offences. Predominant legal opinion in Colombia accepts the existence of this legal duty. The debate, rather, is over its practical realisation. What is the extent of the duty to investigate and prosecute? Does it automatically include an obligation to consider the option of a prison sentence for those found guilty? If so, what are the applicable sentencing guidelines, and what possibilities exist for using alternative punishment to moderate or exclude incarceration?
There is no clear, universal norm that establishes the scope of the duty to dispense justice. Even in the inter-American system, where the Inter-American Court has been forging a strict regional consensus on the duty to prosecute and punish, it is not clear how this obligation operates in the context of massive violations where, in practice, the state would not be able to successfully prosecute all the perpetrators.
In the Colombian conflict, even if the Colombian state worked with the ‘greatest diligence’, it would not be able to prosecute all those who potentially bear criminal responsibility.10 According to official calculations, by 2012, more than 56,000 combatants had demobilised, with as many as 5,000 postulados taking part in the justice and peace process. These postulados had confessed to 35,430 crimes (hechos confesados) and reported 57,131 crimes (hechos enunciados), but only 11 verdicts had been issued (CIJP 2012). While the first justice and peace verdict came in 2009, only 33 verdicts had been issued by July 2015. Proceeding at this rate, the justice and peace system would take 99 years to process the people presently subject to it.
Faced with the impracticality of trying and incarcerating so many people, the Colombian Congress designed a new legal instrument based on the distinction between prosecution and carrying out a sentence. The system, which is seen as a contribution to historical truth-finding, utilises a combination of administrative and judicial proceedings set out in Law 1424 of 2010, the Law on the Agreement on Contribution to Historical Truth and Reparations.11 The mechanism applies to ex-combatants who have committed ‘only’ the offences of belonging to an armed group and using restricted weapons and uniforms. In order to receive the benefits of the law, these ex-combatants have to contribute, through a non-judicial mechanism, to the reconstruction of historical memory. They must explain the circumstances under which they participated, the structure of the illegal armed group of which they were part, and provide all other details of their participation in the group. They must also pay for the damage caused and perform community service in the region where they have been reincorporated into civilian life.
Next, the competent judicial authority, at the request of the government, orders either the suspension of all arrest warrants issued for the demobilising person or the conditional suspension of sentence enforcement, if the person has already been sentenced and is serving prison time. Once the suspension period of the sentence passes and the individual has satisfied his obligations, the sentence expires.
The Constitutional Court found that this instrument did not violate the state’s obligation to provide an effective remedy to victims.12 According to the Court, Law 1424 did not offer impunity for the actions of demobilising individuals, nor did it offer an unjustified reduction in the duration of the sentences that could be imposed on them. Furthermore, the Court deemed the awarding of liberty-related benefits to be an exercise of the punitive power of the state, given that it always takes place through a judicial proceeding.
This decision, however, did not directly address the problem of an overburdened judicial system. Investigating all acts committed in an armed conflict more than five decades old and processing all ex-combatants has placed great strain on judicial resources. Indeed, it would take the system about 526 years to process all ex-combatants using the proceedings set out in Law 1424. To begin with, the punitive standard remains higher than the international standard because the Colombian model entails the investigation and prosecution of ex-combatants even for crimes that international norms consider amnestiable (though such persons may not serve the complete sentence). Moreover, in accordance with the decision of the Constitutional Court, all combatants who have committed atrocious crimes will have to be investigated, prosecuted, and punished. Yet how those investigations will be completed has not been determined; the number of cases currently known exceeds the capacities of the system (as demonstrated by the justice and peace process). Furthermore, the Court has closed the door on the option of giving concessions to the major leaders of armed groups. It ruled that, given their leadership roles, commanders should be held responsible for their crimes, as either perpetrators or participants.
The large number of victims also presents its own challenges: how to guarantee that the process of accountability will not just exist on paper, but instead will foster the social and collective healing that the victims request. If the norms are not applied effectively, the hardening of the legal standard and the insistence on pursuing a growing number of objectives could lead to greater social frustration and inhibit the achievement of transitional objectives such as effective criminal accountability, recognition of victims, and reconciliation. In light of this concern, after 2010, the government coalition in Congress introduced proposals to relax the model of total punitive justice in favour of accepting restrictions in practice, while seeking to present incentives for negotiating the end of the conflict with armed actors who remain in the fight. Although the fundamental rationale of this strategy is not new, it has led to fierce debates between different sectors of society.13
Recent legal reforms have given more consideration to institutional capacities and established a more holistic system of transitional justice. In 2012, the Colombian Congress enacted Law 1592, which aims to remedy bureaucratic problems in the original Justice and Peace Law. Law 1592 requires that prosecutorial efforts be directed towards those ‘most responsible’ for serious crimes and provides mechanisms for selection and prioritisation of cases on this basis. The argument for these mechanisms proceeds as follows: when the number of cases is substantial, or even overwhelming, the system needs to define clear and transparent rules to establish which cases the authorities will investigate and prosecute first and which cases they will dismiss.14 If the system does not include those mechanisms explicitly, then the prioritisation and selection will take place anyway, but in an unsystematic and non-transparent manner. In such a scenario the easiest cases to investigate, even if they are of less importance to society, will be the first to be solved. This contributes very little to an exhaustive exercise of historical truth-seeking or to reconstruction of the patterns of atrocities.
Also enacted in 2012 was the Legal Framework for Peace, a constitutional reform providing transitional justice measures. This would help to bring an end to the armed conflict, while also ensuring ‘the rights of victims to truth, justice, and reparation’. The Legal Framework for Peace sets basic rules and standards for future negotiations with armed groups that cannot be modified by Congress or the courts (as was the case with the demobilisation of paramilitary groups). This framework spurred the FARC to enter into peace talks with the government in Havana in 2012.
Colombia, then, has not followed the path of its Latin American peers who declared a blanket amnesty from the start. Instead, it has started with a punitive approach based on investigation, prosecution, and sentencing. This model, however, does not necessarily entail massive prosecutions or ensure accountability, as the justice and peace cases to date have shown. Constraints during the implementation phase of the justice and peace process can have an even greater impact than judicial restrictions deriving from an amnesty law.
In this sense, Colombia seems to be moving in the direction of a reduced punitive system. The result may be described as a model of ‘accountability pardon’, in which concessions are made regarding criminal responsibility in exchange for total confession of atrocious crimes and some degree of reparation.15 At the start of the process, these concessions were understood to be limited to reduced prison sentences. The current framework includes trials that permit (a) total commutation of the prison sentence for lesser offences, and (b) prioritisation and selection of cases for grave crimes. In such a model, both trials and individual and conditional amnesties play a role in the accountability process.
In an era when the consolidation of international standards impedes blanket amnesties, the search for a negotiated peace is not easy; it is filled with legal complexities that may provide loopholes for avoiding accountability. The Colombian formulas are under the scrutiny of international bodies, notably the Inter-American Court of Human Rights and the International Criminal Court. Experience shows, however, that in contexts such as Colombia, international standards should not be allowed to impede negotiations by blocking benefits or concessions for those who lay down their weapons. Such standards may still be useful in excluding solutions that block access to justice and nullify the rights of victims.
Truth-finding efforts: the ‘broken mirror’ approach
Truth-finding is a difficult task after an armed conflict has ended. When it takes place during a continuing armed conflict, as in Colombia, it is even more daunting. While other countries have emphasised centralised truth-finding efforts led by truth commissions, Colombia’s approach is multifocal. It can be seen as putting together the pieces of a broken mirror, fragment by fragment.16 Such an approach combines official and unofficial efforts, using both judicial and historical methods, to seek a plurality of coexisting and often conflicting truths.
Several factors account for the emergence of this approach. First, the presence of various groups of armed actors, each with a corresponding set of victims, allows for the existence of multiple narratives on wrongdoings and suffering. Second, the Colombian transitional process began with trials (against demobilised paramilitaries and guerrillas) and an institutional body (the CNRR), both envisaged as sources as truth. Third, these official efforts have been accompanied by unofficial truth-finding initiatives carried out by civil society organisations (ICTJ 2009). A relatively recent development is the inclusion of a ‘right to truth’ in transitional legislation, as truth and memory efforts have come to be understood as essential in preventing repetition of gross human rights violations.17 This has led to the allocation of public funds for memory initiatives and historical research, among other initiatives.
Legal developments around truth and memory
According to the Justice and Peace Law, victims have the right to know the truth about the crimes committed by non-state armed groups and the whereabouts of kidnapped and forcibly disappeared persons. The law established the National Commission for Reparation and Reconciliation with the mandate to contribute to the construction of historical truth about armed groups and armed conflict (Sánchez and Uprimny Yepes 2011). To this end, in 2005, the CNRR created the Historical Memory Group (Grupo de Memoria Histórica, GMH). Its task was to document the history of the Colombian armed conflict, focusing on its structural origins and dynamics. It did so with a victim-oriented perspective, highlighting the many voices and local histories that reveal experiences of the conflict (García-Godos 2012). The GMH undertook strategic research on emblematic cases, publishing them as individual volumes and broadly disseminating results through different media.18 Although the GMH had some similarities to truth commissions in the region, it was considered an interim or preliminary body, with a different mandate (García-Godos 2012).
Additional legislation mandating clarification of the truth is found in Law 1424 of 2010. This law applies to demobilised persons who were not implicated in atrocious crimes and thus were exempt from the justice and peace process. They are required, however, to contribute to historical memory by explaining the circumstances of their participation (Sánchez and Uprimny Yepes 2011).
The enactment of Law 1448 of 2011, known as the Victims’ Law, marked a further milestone.19 Under its provisions, the CNRR ceased to exist. So did the GMH, which was transformed into the National Centre for Historical Memory (Centro Nacional de Memoria Histórica, CNMH).
Historical and judicial truths
The National Centre for Historical Memory was constituted in 2011 as a public body, both non-judicial and non-punitive in nature. It is funded by the state, although it has full financial and administrative autonomy. According to the Victims’ Law, the CNMH was created to ‘collect and recover all the documentary material, oral testimony and any other means regarding the violations of rights of victims of the armed conflict’ (Art 147). The information collected is to be made available to both the general public and the academic community. Alongside this, there will be museum activities and educational events to enrich knowledge of Colombia’s social and political history. The CNMH inherited the GMH’s mandate to produce and disseminate a comprehensive report on the armed conflict in Colombia, identifying reasons for the emergence and evolution of the different armed groups and providing accounts of the violence based on victims’ testimonies.20 It has expanded this role to include documentation and recounting of past human rights violations on a long-term basis (CNMH 2012).
According to historian Gonzalo Sánchez (2012), director of the CNMH, the process of memory construction is grounded in respect for human dignity.21 In seeking to articulate the multiple and often differing narratives of victims, the CNMH is guided by inclusive and pluralistic principles, based on the assumption that there is no one unquestionable truth about Colombia’s armed conflict. Rather, there exist myriad perspectives that should be respected and voiced, even when they contradict each other.22
While historical truth is pieced together by historians and others in civil society, judicial truth emerges as the sum of individual stories told selectively by offenders during the trials process. According to one source, the justice and peace trials clearly contributed to public acknowledgement of extensive paramilitary involvement in the armed conflict and of the human rights violations committed by paramilitary groups.23 The trials also contributed, to some extent, to the exposure of economic and political structures that enabled this systematic paramilitary violence. Although the process suffered a serious blow in 2008 with the extradition of 14 paramilitary leaders to the United States on drug-related charges, the proceedings have continued and have yielded a growing trove of information for both judicial and historical enquiries.
Nonetheless, according to political scientist Iván Orozco Abad, a former member of the Historical Memory Group, judicial truth has structural limitations. In particular, it can oversimplify the roles of parties to the conflict, thereby impeding understanding of complex truths about the past. Criminal trials need to make clear distinctions between the roles of perpetrator and victim. ‘Judicial truth creates pure images of villains and heroes, reproducing images of responsibility and suffering in a black-white manner, not allowing for grey zones or complex roles within the armed political conflict.’24 In this sense, Orozco says, some of the trials of paramilitaries in Colombia tended to obliterate individual identities, either demonising perpetrators or sanctifying victims.
This limitation of judicial truth, Orozco asserts, is particularly significant in a post-conflict (rather than post-dictatorship) context. In general, post-dictatorship justice is compatible with a clear distribution of responsibilities and a sharp distinction between guilty perpetrator and innocent victim, with respective monopolies on barbarism and suffering. It focuses on the responsibility of the state, with victims assumed to be powerless before the state’s repressive machinery. In transitions from internal armed conflict, on the other hand, the roles of victim and perpetrator may be blurred in some (though not all) cases. For instance, some of those responsible for displacement and land dispossession in Colombia could themselves have been victims of displacement in the past. Likewise, some victims could have supported the actions of either guerrilla or paramilitary armed groups. In cases of protracted war, the monopoly on barbarism and suffering, and the distinction between victims and perpetrators becomes even less clear. To capture these nuances, Orozco introduced the concept of ‘complex victims’ into the debate on transition in Colombia.25
Courtroom trials, moreover, provide a problematic venue for unveiling the truth about systematic human rights violations and the structures enabling them. For one thing, when a victim’s acceptance of some responsibility in the hostilities is considered self-incriminating, attorneys may advise the victim to stop his or her narrative. In other cases, the Court may silence perpetrators who describe themselves as heroes and saviours of the nation because their narratives are considered justifications of crime (apología al delito) (FIDH 2007, 59). To the extent that information about other crimes revealed in court is not processed prior to a new, separate, investigation, it cannot be disputed. Finally, it is unclear whose task it is to integrate all the disparate fragments of information coming out of the justice and peace process in order to reveal complex patterns of abuse.
Comparing the merits of historical and judicial truth, Judge Uldi Teresa Jiménez points out that researchers can use strategies in the truth-seeking process that judges cannot. For instance, they can use confidential sources or ask for contextual information that might not be relevant to the specific case in trial. ‘Historians have far fewer restrictions than judges when examining the structures behind massive violations of human rights, partly because the judicial truth is derived entirely from what is said in open court, which must be specifically relevant to the case and based on the concrete evidence brought by the prosecutor.’26
Although historical and judicial truth efforts have different roles and different limitations, the two can be understood as being complementary rather than incompatible. Judge Jiménez comments, ‘We have often invited the CNMH to the trials to participate and inform us on their investigations of the cases.’27 Gonzalo Sánchez (2012), the CNMH director, points out that carrying out memory work can reveal the realities hidden behind legal formulations, especially experiences of suffering. A potential obstacle to such work, however, is the risk that historians may be sued for the content of their reports.28 The Victims’ Law therefore included a specific exception for members of the CNMH, ensuring that they cannot be subject to litigation for their findings.
The Legal Framework for Peace tried to remedy the deficiencies of the model that was adopted in the justice and peace process by advocating complementary judicial and historical truth-seeking efforts. Once the guerrillas demobilise, a truth commission will be created with the goal of providing a nuanced global understanding of systematic violence by the different armed actors and its impact on the population. Though it could be argued that it is too early to construct the full truth of the armed conflict, since it has not ended, that is not an adequate justification for refraining from interim efforts. The rationale behind the current work of the CNMH is that victims of the demobilised factions should not have to renounce their right to truth and memory because of pending negotiations, uncertain peace agendas, and blurred promises of an end to the conflict.29
The enactment of the Justice and Peace Law in 2005 marked the beginning of the process for reparations in Colombia. In practice, however, implementation is only now taking place, through enforcement of the Victims’ Law of 2011. Since the conflict is ongoing, security, rule of law, and respect for human rights are either still precarious or non-existent in some areas of the country. The result is a constant flow of new victims and/or revictimisation.
The Justice and Peace Law made explicit recognition of victims’ rights based on the principle of comprehensive reparations (reparación integral). It sought to provide victims with both material and symbolic forms of reparation, as well as ‘satisfaction’ and guarantees of non-repetition, following the United Nations (UN) Basic Principles and Guidelines on victims’ reparations.30 However, the law envisaged the provision of victims’ reparations as the result of a judicial process, with clear limitations discussed below. Another feature of the law was that the definition of victim did not include anyone whose rights had been violated by members of the armed forces. This provision, which was sanctioned by the Constitutional Court, was vigorously contested by human rights groups and was later dropped under the terms of the Victims’ Law.
By March 2012, 386,069 victims had been registered through the justice and peace process – about half of them by the Justice and Peace Unit in the Attorney General’s Office, and the rest by other public agencies such as the National Registrar or the CNRR (CIJP 2012). Within this framework, reparations to victims are to be provided by the individual victimiser after a guilty verdict has been issued. If a victim is unable to identify his or her victimiser, then reparations will be provided from the Reparations Fund, which includes assets provided by the postulados when they join the justice and peace process. The form and size of reparations in each case is decided through a special hearing known as incidente de reparación, in which victims put forward reparations claims to be heard by the judge. The first reparations hearing took place in 2010. By December 2012, only 14 cases had reached a verdict and only 11 had proceeded to a reparations hearing (FGN 2012; CIJP 2012). The judicial path to reparations has proven to be extraordinarily lengthy and has been heavily criticised by victims’ groups, and both human rights and other civil society organisations.
Partly as a response to such criticism, the government established an administrative reparations programme in 2008.31 The administrative path to reparations demands a much lower threshold of evidence than the judicial path. It is thus a more favourable option for those who cannot identify or are afraid to confront their victimisers, those who do not have financial resources to bring their claims before the justice and peace courts, and those who were victims of organisations other than paramilitary groups (but not including state agents). In this programme, the state assumes the task of compensating the victims of armed conflict based on a principle of solidarity. According to Colombian authorities, this solidarity compensation (indemnización solidaria) does not imply any form of state responsibility for the crimes that victims may have experienced; it is merely recognition of the difficult situation they face. This interpretation of solidarity has, not surprisingly, been challenged by victims’ organisations and other civil society actors.32
Administrative reparations only provide monetary compensation for crimes committed against individuals; they do not include compensation for damage to property.33 Compensation varies depending on the nature of the crime, ranging from 27 to 40 times the national basic monthly salary, to be paid as a lump sum. The presidential agency Acción Social (now Department for Social Prosperity, DPS), which is also in charge of the Reparations Fund, was initially mandated to establish and implement the administrative reparations programme. Registration for this programme did not exclude victims from seeking reparations from their victimisers through the judicial process. The original registration period for this programme lasted two years, from April 2008 until April 2010. According to official figures, 331,604 applications had been received by the close of registration. By October 2010, 20,837 families had received monetary compensation through the administrative reparations programme (Acción Social 2010).34
Victims’ reparations, as envisaged by the Justice and Peace Law, also included the development of collective reparation initiatives, aimed at restoring citizens’ rights and the rule of law, particularly in those regions of the country most affected by the armed conflict. Throughout its mandate, the CNRR sought to promote victims’ rights and a victim-oriented perspective in the various components of the Colombian transitional justice scheme. Working through its extensive regional networks and in cooperation with public institutions at both regional and local levels, the CNRR succeeded in putting the rights of victims on the national public agenda. With the entry into force of the Victims’ Law, the CNRR ceased to exist and a new institutional apparatus took over the task of reparations, as described in the next section.
The fact that both judicial and administrative reparations programmes focused on individual monetary compensation opened up a debate about the nature and aim of reparations. Should reparations merely restore the victim to his or her former condition, possibly one of poverty, marginalisation, and vulnerability, or should they attempt to improve the victim’s situation, including access to civil rights and civil liberties? This second alternative is termed transformative reparations (reparación transformadora). These are reparations that aim not only to remedy the harm to individual victims, but also to transform the socio-structural conditions that fostered armed conflict and human rights violations in the first place.35
In a country such as Colombia, where social inequalities and regional disparities are deeply entrenched, the debate about transformative reparations is not merely academic. At its core are questions about how to distinguish between retributive and distributive justice and how to integrate them – or not – in a transitional justice agenda. From this angle, we can consider Colombia’s TJ process as a window of opportunity for working towards distributive justice objectives, as this would arguably support peacebuilding processes in the long term. In part, these arguments have been acknowledged and incorporated in the Victims’ Law of 2011, as described below.
The Victims’ Law: strengthening victims’ rights
By 2010, despite CNRR’s efforts, no comprehensive reparation programme extending beyond monetary compensation was in place. A first legislative proposal focusing explicitly on victims’ rights and reparations was developed by civil society and presented to Congress in 2008 by a group of parliamentarians. Despite much national and international attention, the proposal was dismissed the following year.36
In August 2010, just weeks after assuming power, President Juan Manuel Santos forwarded a proposal to Congress promising to address ‘the pending debt’ the country owed victims of the armed conflict. Shortly after, a separate proposal on land restitution was merged with this legislation, placing the issue of internal displacement at the centre of a national reparations programme. Outreach activities by the CNRR and civil society organisations, congressional debates, and wide media coverage promoted public discussion of the legislation, which was approved by Congress on 1 June 2011. It was signed into law on 10 June as Law 1448, widely known as the ‘Victims’ Law’.
The legislation has been welcomed by broad sectors of Colombian society, including victims’ organisations, for its emphasis on victims’ rights and on land and property restitution (Semana 2011). Significantly, the law recognises as ‘victims’ not only those harmed by illegal armed groups, such as paramilitaries and guerrillas, but also those victimised by the Colombian police and armed forces. Reparations can be claimed for physical, material, and psychological harm since 1985, while land and property restitution applies to losses occurring since 1991. Although the law does not affect judicial processes implemented under the Justice and Peace Law, it has significantly reduced, in favour of the victim, the threshold of proof to access reparations, much as the administrative reparations programme did. The necessary regulations to implement the law were passed in late 2011.37
The Victims’ Law established new institutions for developing and implementing a national reparations programme that includes compensation, restitution, rehabilitation, satisfaction, and guarantees of non-repetition, forms of reparations set forth in the UN Basic Principles. The new institutions include two specialised units for reparations and land restitution, a national registry of victims, a national system for victims’ reparations, a national registry for usurped lands, and a centre for historical memory. The new Unit for Victim Reparations (Unidad para la Atención y Reparación Integral a las Víctimas) is placed in the Department for Social Prosperity (DPS 2012). The Land Restitution Unit (Unidad de Restitución de Tierras) operates out of 21 offices across the country (Ministerio de Agricultura 2013).
The situation of internally displaced persons (IDPs) and land and property restitution are extremely complex issues in Colombia, for technical and administrative reasons and because of the strong economic and political interests at stake. While protection of the rights of IDPs came to the government’s attention in 1997, the Constitutional Court declared the IDP situation ‘unconstitutional’ in Decision T-025 of 2004, prompting urgent state action with regard to both humanitarian assistance and property restitution. The coexistence of several forms of property and tenure, incomplete cadastral records, parallel registration systems, multiple registrations, and claims to the same property both concurrently and over time are among the many factors affecting implementation. Coercive practices of land expropriation and usurpation are often legalised through formal and judicial channels. The task is complicated by the presence of strong economic actors and activities on disputed lands (Gutiérrez Sanín 2010). In addition, security challenges both to returning populations and to community leaders making restitution claims threaten progress in implementing these measures.38
The new institutions created by the Victims’ Law have developed special procedures adjusted to the extraordinary character of transitional justice in Colombia, especially in light of the ongoing conflict and the large number of victims. Unfulfilled expectations and broken promises may damage the fragile trust emerging between the state and victims of the Colombian armed conflict.
Transitional justice in Colombia is a work in progress, one rendered particularly complex by the continuing conflict. Policy makers must comply with legal mandates but must also consider the impact of their actions on the ongoing peace and demobilisation negotiations. The number of victims and crimes continues to grow.
Security and stability in the country remain tenuous, creating additional obstacles for the implementation of transitional justice mechanisms. In the case of land restitution, many of those who lost their land in the conflict have received death threats; some have been killed. Even if some people do succeed in returning to their land, they may be victimised again.
The conflict is now more than five decades old. This creates enormous practical issues for the agencies charged with implementing TJ mechanisms. A key problem is the large numbers of both perpetrators and victims. The Colombian judiciary cannot realistically investigate and prosecute hundreds of thousands of conflict-related crimes. Nor will the state be able to find individualised remedies for the millions of victims.
The Colombian Constitutional Court and the Inter-American Court of Human Rights have both issued rulings calling for more punitive measures in Colombia. Such rulings provide grounds to challenge non-punitive transitional justice mechanisms. Even so, Colombia is not required to take an extreme punitive stance, that is, take to court all perpetrators for all types of violations, something that would be impossible in practice. The Inter-American Court stressed the need for Colombia to use ‘the greatest diligence’ in investigating and prosecuting crimes and those who are ‘most responsible’ for criminal violations. In a context of limited resources, this should be taken to mean that Colombia can deal with those who are less culpable through non-judicial means. This view was recently endorsed by the Constitutional Court, when it ruled that the principles guiding the Legal Framework for Peace are in accordance with the constitution.
Colombia’s legislature has already laid out some mechanisms that must be incorporated in Colombia’s TJ agenda, including the creation of a truth commission after the violence finally ends.39 In the current context, however, the cessation of violence is the first and highest priority.
As of 2015, talks are continuing between the government and FARC in Havana. With a six-point agenda, the two sides appear determined to take an holistic approach, not settling for piecemeal agreements. A comprehensive agreement between the state and FARC, if and when it is reached, will spread confidence in the country’s institutions. This, in turn, will help the government bring stability throughout the country and move into a post-conflict stage, when transitional justice will have to contend with many and varying claims.
Colombia is unique in Latin America in taking significant steps towards transitional justice before the end of a protracted conflict. To date, however, the aims of the country’s ambitious TJ process have been achieved only in part. Despite strong advances in the legislative arena, implementation remains hobbled by the huge scope of the task and by the continuing conflict. However, the impact cannot be assessed by numbers alone. Colombia’s experience illustrates the urgent need to reconceptualise transitional justice theory and practice. If the negotiations succeed, Colombia may eventually join other Latin American countries in pursuing transitional justice after conflict has ended and the country has made a transition to peace.
Source: Authors’ construction, 2015.
Source: Authors’ construction, 2015.
Source: Authors’ construction, 2015.
Source: Authors’ construction, 2015.
Notes
*The authors thank Clara Sandoval-Villalba, and anonymous reviewers for valuable comments on this chapter.
1Convivir was established by Decree 356 of 1994, which ‘establishes a statute for vigilance and private security’ (our translation). Unless otherwise stated, all translations of Colombian laws and legal texts are provided by the chapter authors.
2The text of the Acuerdo de Santa Fe de Ralito is available in Spanish on ReliefWeb, http://reliefweb.int.
3The number of demobilised combatants rose to 56,000 by 2012 (CIJP 2012).
4The Colombian Commission of Jurists filed a case at the Colombian Constitutional Court questioning the constitutionality of the Justice and Peace Law. After extensive deliberations, the Court announced its Ruling C-370 in 2006, finding the overall law to be constitutional, although particular aspects of it were considered unconstitutional, thus needed to be interpreted and implemented differently.
5By 2005, the inter-American human rights system, as well as several national tribunals, had already ruled to prohibit blanket amnesties and self-amnesties and had asserted a state obligation to combat impunity. See Inter-American Court of Human Rights (I/A Court HR), Case of Barrios Altos v Peru, Judgment of 14 March 2001, and Case of Almonacid Arellano et al. v Chile, Judgment of 26 September 2006. The Inter-American Court had also issued several decisions establishing the responsibility of the Colombian state and criticising impunity for human rights violations. It has not, however, explicitly addressed the issue of the legal international standing of the Colombian transitional justice measures.
6An unofficial English translation of the law can be found on the Verdad Abierta website, https://www.verdadabierta.com/documentos/justicia-y-paz/general-1/352-ley-975-de-justicia-y-paz-version-en-ingles.
7The Colombian Commission of Jurists fiercely opposed the procedure for the laying down of arms authorised by Decree 128 of 2003 (CCJ 2005). For an overview of the procedures, see IACHR (2004).
8An exhaustive analysis of the Constitutional Court’s arguments can be found in MAPP/OEA (2011).
9Since the adoption of the justice and peace model, several paramilitary leaders have called the prosecution measures ‘a betrayal of the agreements’. In their view, the agreements reached with the government did not contemplate hardening of the punitive standard in Congress or the decision of the Courts (El Universal 2009).
10When there is an obligation to investigate, the Inter-American Court expects the state to proceed with the ‘greatest diligence’. I/A Court HR, Case of the Massacres of El Mozote and Nearby Places v El Salvador, Judgment of October 25, 2012, para. 319.
11Law 1424 of 2010 ‘establishes measures of transitional justice to guarantee truth, justice, and reparation to the victims of demobilised individuals belonging to illegal armed groups, and grants legal benefits and other dispositions’.
12The case was presented by the Colombian Commission of Jurists and supported by a number of human rights and victims’ organisations, which indicates that the fight against impunity is still a central priority on the agenda of these organisations.
13For an exhaustive legal argument against this model, see the letter from José Miguel Vivanco on behalf of Human Rights Watch to the presidents of the Colombian Senate and House of Representatives, 1 May 2012. The letter is available on the Human Rights Watch website, http://www.hrw.org/news/2012/05/01/colombia-correct-serious-flaws-transitional-justice-bill.
14Criteria presented as possible bases for prioritisation and selection include gravity, public interest, representativity of the case or of the suspect, viability, and capacity, among others (Bergsmo and Saffon 2011).
15Rodrigo Uprimny (2006) defines the concept of ‘accountability pardons’ as those transitional justice models where benefits, such as sentence reduction or individual amnesties, are granted in exchange for true efforts to secure the rights of victims.
16We thank Rodrigo Uprimny for suggesting this metaphor to us.
17Law 975 of 2005, Law 1448 of 2011, and the 2012 Legal Framework for Peace all recognise the right to truth.
18The first GMH report, Trujillo: Una tragedia que no cesa, was published in 2008. This report, along with those on the El Salado, La Rochela, Bojayá, and Segovia cases, among others, is available on the website of the National Centre for Historical Memory, http://www.centrodememoriahistorica.gov.co/en/reports.
19Law 1448 of 2011, the Victims and Land Restitution Law, ‘establishes measures to address, support, and provide comprehensive reparations to the victims of the internal armed conflict’.
20Decree 4153 of 2011 ‘establishes the creation of the Centre for Historical Memory and other measures’.
21Gonzalo Sánchez, director of the CNMH, in comments at the event ‘El deber de la memoria: Conversación con Félix Reátegui’, Feria del Libro de Bogotá (Bogotá International Bookfair), 26 April 2012.
22Iván Orozco Abad, political science professor at Universidad de los Andes and former member of the Historical Memory Group, interview by authors, 18 April 2012. All author interviews for this chapter were conducted in Bogotá.
23 Juan Fernando Cristo, Colombian senator, member of the Colombian Liberal Party, and proponent of the Victims’ Law, interview by authors, 18 April 2012.
24Iván Orozco Abad interview, 18 April 2012.
25Ibid. Orozco is citing Bouris (2007).
26Judge Uldi Teresa Jiménez of the Superior Court of Bogotá, Justice and Peace Division, interview by authors, 17 April 2012.
27Ibid.
28For example, members of the GMH were accused of defamation based on information contained in the La Rochela case report (G. Sánchez 2012).
29Juan Fernando Cristo interview, 18 April 2012.
30United 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, adopted by General Assembly resolution 60/147 of 16 December 2005.
31Decree 1290 of 2008, ‘Programme for individual reparations through administrative means’.
32On the difference between solidarity and responsibility as the basis for victims’ reparations, see N. Sánchez (2009).
33The Justice and Peace Law applies to all types of criminal acts penalised in the national penal code, without mentioning any specific type of crime. Damage to property is addressed indirectly by way of restitution, identified in the law as a form of victims’ reparations. The administrative reparations decree, on the contrary, enumerates the types of crimes considered for monetary compensation, including internal displacement (Decree 1290, Art 5).
34The number of individual applications processed and approved for compensation by 2010 is not available; the only indicator made public is the number of families that received compensation, along with the amount of money disbursed.
35On the transformative potential of reparations in the Colombian context, see Uprimny and Saffon (2009).
36On the debates around the proposal (044/08), see N. Sánchez (2009).
37An updated list of decrees regulating Law 1448 can be found on the Unit for Victim Reparations website, http://www.unidadvictimas.gov.co/index.php/en/normativa.
38Several community leaders have been killed during restitution processes or after the returns have been completed (CODHES 2011).
39Judgment C-579/13 of 28 August 2013.
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