Some teachings from Colombia: transitional justice and victims

By Federico Isaza Piedrahita*

On January 25th the 2261 Resolution of the United Nations Security Council was approved farcunanimously, which expresses full support and blessing of the international community to the peace process that is underway between the Colombian Government and the Revolutionary Armed Forces of Colombia – People’s Army (FARC-EP).

This resolution allows the international community to serve as guarantor of a tripartite mechanism, seeking, in this first step a “political mission of unarmed international observers” (para. 2), which will be established for a period of 12 months”, and can be extended for additional time (para. 1 and 6). It will be responsible for the “monitoring and verification of the laying down of arms…and verify the definitive bilateral ceasefire and cessation of hostilities”. The document recognizes the progress that has been made and “the commitment of the Government of Colombia and the FARC-EP to reach a swift end to the armed conflict, and the confidence-building measures implemented in order to provide the first dividends of the peace process to the Colombian people”.

While there are many points that cast doubt, this will have important practical effects for the fulfilment of point 3 of the agenda, delimited by the Government and the FARC-EP: the end of the conflict.

The signing of this Resolution shows first, that the threats made repeatedly by NGOs like Humans Rights Watch and also by the International Criminal Court, and the criticism of the peace process is sometimes exaggerated and will not provide a basis for concluding that the negotiation will inevitably lead to a situation of impunity and without general guarantee for the population, and especially for the sectors of society that suffered the ravages of the conflict that has plagued Colombia for nearly five decades.

Secondly, the support to the current peace process demonstrates that international standards allow the generation of creative options in dealing with the conflict challenges, without neglecting the obligations of the States, and above all, enable them to adapt to the specific context of the country immersed in the transitional justice processes. This is  not only vital for the historic moment that Colombia is in, but also for other countries seeking to find remedy to the serious and massive human rights violations from the past.

For Colombia, the use of transitional justice mechanisms has significant relevance because of the dimensions that the conflict reached, presented as uninterrupted human rights violations. Albeit, they are hardly comparable with what has happened in other countries. There are certain important historical issues:

  1. the waves of violence in the country have been a constant, almost since its birth as an independent State. There are those who even indicate that Colombia never, in its history, has lived a time of recognizable peace throughout the country;
  2. the type of violence suffered in Colombia has been characterized as a horizontal conflict in which victims can be perpetrators and vice versa (Marín González, 2014). An issue that makes it difficult to draw clear guidelines for repair mechanisms.

To quote a sample, Colombia has more missing people than all the ones recorded during the dictatorships in the Southern Cone (Argentina, Brasil, Uruguay, Paraguay, Peru and Chile). According to the SIRDEC, (Network System of Information of Missing Persons and Corpses) Colombia currently has 69.565 people reported as missing, of which 20.944 have been classified as alleged disappearances. Likewise, to December 2014, Colombia was in second place for the highest number of internal displaced people in the world, after Syria. Such is the importance of the use of mechanisms of transitional justice, which within the framework of negotiations that began with the FARC-EP in 2011-2012, it was made a constitutional reform that includes within its text, the phrase “transitional justice“. No country in the world except Colombia, has inserted so far within its constitution that explicit type of mechanisms.

The number of actors in the internal armed conflict that has Colombia in its different nature, goals, and even the State infrastructure, budget and policy decision of the rulers of the moment, has exposed an important issue: the negotiations carried out and possibly to perform, only are limited to dialogues with one or two actors in the conflict. This has made the attempt to remedy, once and for all, the end of the armed conflict, staged and not in a context of dialogues with all the groups involved.

Of these phases, several lessons were learned, especially from the impotence that resulted by the application of the so-called Justice and Peace Law which in 2005 intended to disarm, in their majority, the paramilitaries, and also some guerrilla insurgents. Many areas in which major breakthroughs were expected were not achieved, as it happens with the inefficiency in the pursuit of goods, and the non-investigation of thousands of people point out to be financiers of the war, or that, by 2012, it had only been tried the 0.3% of the paramilitary members. In numerical proportion: 14 judicial decisions of about 35,000 demobilized paramilitaries

But perhaps the most obvious problem that deserved all criticisms, but it was certainly the most important lesson of that process, is that there was little or almost non-participation of the victims, both in the stages of negotiation, as in the policies and mechanisms that were created from the law.

National law and their exercise of creation and establishment, strictly depend on the guidelines of the international rules. In this regard, in terms of recognition of the victims, the background to the international guidelines of transitional justice in the field of victims, is in the Declaration of basic principles of Justice for victims of crime and abuse of power of United Nations of 1985.

Subsequently, in 2005, the United Nations General Assembly enshrined the 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, which established that a victim would be understand as:

“(…) persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law (…)

In the victimology field, the main focus has been on the concept of victim in the framework of conventional crimes, but very little attention has been directed to the scope of the concept in the context of victimization, especially in armed conflicts. This present a lot of questions around the concept in a situation like the one in Colombia.

colombia_transitional justice_tripartite_agreementPaul Rock, through numerous field studies, highlights the manifestation of the victims today confirming their reservations about the fact of being called victims (2002). On the other hand, Jan Van Dijk highlights the fact that the concept of victim has a primarily theological connotation (2009). The oldest records in European texts (which correspond to the nearest legal influence of Latin-American) of the word victim, associated with a person, corresponds to the name that takes place of Joshua, as the “volunteer victim“, who through his sacrifice redeemed human beings.

The concept of victim frames the person, subject of this denomination, a label that sets per se a way of inhabiting the world, feeling and face the facts that led it to be designated as such. In this sense, this tag or clothing that is set is the feeling of compassion and forgiveness.

There is a social construction that underlies the concept of victims, which contains elements that support a notion of passiveness, required of legal assistance and political intervention, and of punishment for the criminal. Van Dijk highlights almost the contractual exchange between the society and the victim: in exchange for a particular stance towards what happened, which corresponds to a passive attitude and redemption to the perpetrator, it is granted recognition and support (Weinstein, 2014).

In his studies, he express that there are three issues that are generated from the personal narrative as a victim: manifestations of resilience, deep feelings of rage and fantasies of revenge, and post-traumatic altruism. However, society does not accept the emergence of these postulates as force or evidence of autonomy. What is created is what he calls “reactive victim scapegoating“: the victim is rejected if the role that is imposed is not assumed. Thus, instead of leaving these forces as engines to make functional the anger as motivation, society becomes the victim traumatized patients who require treatment for trauma and therapy (Weinstein, 2014).

This is why it has been so important to held negotiations with the FARC-EP, as it has been allowed to institutionalize through policy, action and demonstration, the actions and own policies created by the victim’s itself out of the legal context, through self-management and the determination not to submit to the re victimization.

The creation of self-managed spaces to battle for their right to peace and reparation; the construction, hand to hand, of projects that involved other victims and even perpetrators to strengthen the communities from inside, and cultural activities to combat one of the biggest enemies of war, the oblivion, are more remarkable when we take into account that almost every one of the places that suffered the most with the war, are the places where it exists what the doctrine has named “institutional apartheid”(García Villegas, Espinosa R, 2013); places where the presence of the State is almost non-existent and therefore, there are no guarantees to the recognition of minimum rights.

This is the perfect moment for the international community to pay attention more closely to the victims. Their inclusion until the end of the process and beyond of it is completely necessary, but above all, the enlargement of the victim’s actions as subjects with potential for change, not only can result in the re significance of the concept of victim, but could even establish new guidelines and standards within the framework of transitional justice mechanisms around the world.

(* Federico is a Colombian qualified lawyer. His areas of interest are criminal law, transitional justice and victimology. He can be reached at federico.isazap@gmail.com)

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Bibliography

  • Comisión Colombiana de Juristas. Actualización del informe de seguimiento a las recomendaciones 9, 14 y 16 del Comité de Derechos Humanos de la ONU. Marzo 14, 2012.
  • Congress of Colombia. Justice and Peace Law (Law 975 of 2005). July 25.
  • García Villegas, Mauricio, José Rafael Espinosa R. El derecho al Estado. Los efectos legales del apartheid institucional en Colombia. Bogotá: Centro de Estudios de Derecho, Justicia y Sociedad, Dejusticia, 2013.
  • Internal Displace Monitoring Centre. Global Overview 2015; people internally displaced by conflict and violence. May 2015, p.1-13.
  • United Nations. General Assembly. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Adopted and proclaimed by General Assembly resolution 40/34 of 29 November 1985.
  • United Nations. General Assembly. 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 and proclaimed by General Assembly resolution 60/147 of 16 December 2005.
  • United Nations. Security Council. Resolution 2261 (2016). Adopted by the Security Council at its 7609th meeting, on 25 January 2016.
  • Marín González, Karen. Horizontal victimization and transitional justice challenges for The Colombian post-conflict. A methodological approach. Revista Cultura Investigativa, julio-diciembre de 2014.ISNN. 2027-8993 (107-123).
  • Rock, Paul. On Becoming a Victim. In New Visions of Crime Victims (C.hoyle and R, Young, eds) Hart: Oxford. 2002, pp.1-22.
  • Van Dijk, Jan. Free The Victim: A Critique of the Western Conception of Victimhood. International Law Review of Victimology. 2009, pp.1-33.
  • Weinstein, Harvey. Victims, Transitional Justice and social reconstruction: who is setting the agenda?. In Justice for Victims, perspectives on rights, transition and reconciliation; Routledge. 2014
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