Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (52 page)

A Legal Framework for Peace Negotiations and Accountability: The Introduction of Transitional Justice in Colombia

The main legal instrument regulating the Colombian process, the 2005 Law of Justice and Peace (Law 975), clearly links the demobilization of illegal armed
groups and the rights of the victims. Its origins lie in several previous legislative attempts to end the armed conflict.
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A law passed in 2002 gave the government the legal mandate to initiate a process of negotiation with one of the “armed groups at the margins of the law,” the paramilitaries.
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This law established the legal framework to enable peace negotiations and to initiate the codification of victims’ rights, the regulation of demobilization, and the reinsertion of former paramilitaries into society.
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These instruments were strongly criticized and seen by many as legal tools guaranteeing impunity instead of punishment for AUC members, while granting them benefits that few in Colombia enjoyed.
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Congressional legislation was necessary to finalize the negotiation process. The first bill presented by the government (known as the “Alternative Penalties Law”) proposed to guarantee amnesty for all demobilized armed actors, based on a restorative concept suggesting that criminal punishment would not contribute to reconciliation.
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The bill was heavily criticized by national and international human rights organizations, victims’ organizations, and some political groups, and was rejected by the Congress.
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A new bill was drafted by the allies of the executive in Congress and was passed on 25 July 2005 as Law 975, the “Law of Justice and Peace.” The law utilizes the discourse of transitional justice, acknowledging the need for retributive justice and recognizing the role of the victims and their rights in the peace process. By the time the law was approved, the AUC had already begun to demobilize in great numbers, and continued to do so even after the terms set for demobilization in 2003 had changed.

Shortly after the approval of Law 975, a case was filed at the Colombian Constitutional Court, questioning its constitutionality. Ruling C-370 of 2006 by the court found the overall law to be constitutional, while finding particular aspects of it unconstitutional and in need of different interpretation and implementation.
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Supplementary decrees have amended the legislation further.
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The legal content of the law is thus now significantly different from what the paramilitary leaders agreed to when they began dismantling their organizations in 2003, and, as a consequence, some paramilitaries withdrew from the process.
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The process of demobilization continued and by 2007 president Uribe proclaimed that the paramilitaries no longer existed in Colombia.
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The Other Beneficiaries of the Peace and Justice Process: Victims of the Colombian Armed Conflict

Law 975 addresses two very different types of actors: members of illegal armed groups willing to demobilize and the victims of the Colombian armed conflict. It is necessary here to emphasize that the overall label of “victims” encompasses a very large and extremely heterogeneous group of people, in terms of composition, background, organization, outlook, and interests. Common to all victims is that they have experienced at least one form of human rights violation, yet their ways of dealing with their victimization vary. Not all victims join or are organized in specific groups or associations, although there is a large number of victims’ organizations at the national, regional, and local levels. They are usually based on
geographical distinctions or specific characteristics of the victim group, such as the type of violation suffered; some also have a broader base in terms of composition and the ways in which violations can be addressed.
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Victims’ organizations face many challenges, both institutionally and in terms of security. Their leaders are often under threat by the illegal armed groups still operating, and several have been killed.
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These organizations have tense relations with government institutions and express various degrees of mistrust for the transitional justice process.
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The work of victims’ organizations is supplemented by organizations that work with or on behalf of the plight of victims, and which are themselves not necessarily composed of victims themselves, such as human rights organizations, academic institutions, and a range of other non-governmental organizations.
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As with victims’ organizations, these are very diverse in terms of mission, strategy, operations, and ideology. Some provide specific services, such as legal or mental health counseling.

Although approved by Congress and sanctioned by the Constitutional Court, Law 975 was (and still is) questioned by civil society actors, including victims’ organizations, on various grounds. For some observers, it seemed paradoxical that the government would engage in a peace process with the paramilitaries, who were considered to be pro-government forces. It was argued that the framework served particular economic interests, impunity, and potential political gain.
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Victims’ organizations and related organizations have continuously denounced the law as one of impunity, designed to consolidate existing power relations.
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Similarly, the Colombian Commission of Jurists does not believe that the process contributes to the solution of the conflict or the fulfillment of victims’ rights.
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The application of transitional justice mechanisms when no obvious transition has taken place has also been questioned and there have been serious doubts about the plausibility of aiming for peace with all “organised armed groups at the margins of the law” through the same legal framework.
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A further concern has been the security of victims, who might be put at risk by the very procedures established for the Justice and Peace process. Law 975 was implemented in a highly contested environment.

Transitional Justice in Practice

The objective of the Law of Justice and Peace is, as Article 1 clearly states, to facilitate the peace process and the reintegration of demobilized paramilitaries or guerrillas, while securing the rights of victims to truth, justice, and reparations.
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The transitional justice scheme set up to implement the law involves the participation of a number of specialized public agencies, some newly created, others granted new mandates, and most of them within the justice and social sectors. The scheme is complex, and the relation between the different agencies develops in intricate ways. I next discuss various components of the Colombian transitional justice process as they are currently applied to fulfill victims’ rights to justice, truth, and reparation.

Retributive Justice and Partial Conditioned Amnesties: The Right to Justice

According to official numbers, a total of 31,671 members of paramilitary groups had demobilized by August 2006, mostly through collective demobilization.
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Only a fraction of the demobilized (2,716) entered into the Justice and Peace process: those who at the moment of demobilization had criminal charges or judicial procedures pending against them, or had admitted to conducting criminal acts. They are referred to as
postulados
, and by entering the process they commit to contribute to the clarification of the truth, refrain from illegal and criminal acts, and declare and surrender all economic resources and assets to sustain proper victim reparations. The remaining demobilized combatants were granted a conditioned amnesty and joined reintegration programs organized by the government.

Law 975 applies to both paramilitary and guerrilla members who can demobilize either collectively or individually. According to government figures, the total number of demobilized personnel by October 2010 was 54,297, of which 58 percent had demobilized collectively (31,472) and 42 percent on an individual basis (22,825).
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With the increase in demobilized former paramilitaries and guerrillas came an increase in the number of
postulados
: 4,779 people by October 2010, 88 percent from paramilitary groups, the rest from five guerrilla groups.
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The
postulados
’ participation in the Justice and Peace process involves several quasi-judicial and judicial steps which seek to gather information about criminal acts committed by the individual
postulado
and his group, enabling judicial and police investigation, and the opening of new cases requiring criminal investigation.
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Victims, their families, and their representatives can participate directly or indirectly in the proceedings, which for the most part are led and organized by the UNFJP, at the Prosecutor General’s Office, with offices in Bogotá, Barranquilla, and Medellín. Possibly the most publicized phase in this process is the one known as
versiones libres
, or “free accounts,” during which individual
postulados
discuss the crimes committed by themselves and their groups, and provide information about specific cases. Free accounts sessions are announced widely, to ensure the participation of victims. The hearings are also broadcasted directly to other cities and local communities, to ensure the spread of information. Once this part of the process is completed, formal charges which initiate judicial proceedings are to be raised by the Prosecutor. Once a sentence has been reached, this will be reduced according to the Justice and Peace process to periods between five to eight years. At the end of the process a special hearing/session will take place to establish the reparations to be provided by the individual
postulado
to his victim(s).

The retributive justice component of the Peace and Justice process has been time-consuming, and its effectiveness with regard to victims’ rights has been questioned. According to official figures, 2,424 free accounts have been initiated since the start of the process in 2005, while roughly 2,300
postulados
are still waiting to engage in free accounts; 1,317 free versions have concluded. From
those concluded, 468
postulados
have reached the judicial proceedings, but only two had reached a sentence by mid-2010 and only three reparations hearings had taken place.
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The amount of information brought to light during the free versions stage has been enormous and, for each criminal act declared, new victims are identified and new cases are established. The number of possible criminal charges is beyond what was envisaged when the process was designed. For example, the 129
postulados
at the stage of formulation of charges by October 2010 will be charged with 11,746 acts of criminal conduct.
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The process faces serious administrative and logistical challenges, and is particularly vulnerable to political manipulation. In May 2008, the Colombian government extradited 13 top paramilitary leaders to the USA for drugs-related charges at the request of the US government. The Colombian government argued that the paramilitary leaders had not complied with the obligations set forth by Law 975 and had violated the terms of the agreement and were no longer protected from extradition to the USA.
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This sudden and unexpected measure has been linked to what is known in Colombia as the
parapolitica scandal
, in reference to the influence that paramilitary forces exercised over political institutions in the country. The claim previously made by the AUC leaders, that 30 percent of Congress representatives had been elected with their assistance, had been substantiated in an academic paper studying voting patterns in regions where the AUC exerted
de facto
control.
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Through the
versiones libres
, however, sensitive information linking the paramilitaries to political leaders and public officials at the highest level was presented by the paramilitary leaders themselves.
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Victims’ and human rights organizations have denounced the extradition as a strategy to impede investigations.
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The extradition of paramilitary members in 2008 was a serious blow that undermined the public’s view of the legitimacy of the process. The Government has insisted that the extraditions have not affected the victims’ right to truth, as most of the seconds-in-command are still in Colombia and are actively disclosing information about the crimes committed and AUC activities.
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Judicial and Historical Truth: The Right to Truth

According to Article 7 of Law 975, victims have the right to know the truth about the crimes committed by illegal groups and the whereabouts of kidnapped persons and those forcefully disappeared. The law considers the judicial process of the Justice and Peace framework as a source of truth.
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The law also dictated that one of the many functions of the CNRR was to deliver a report on the reasons behind the emergence and evolution of illegal armed groups. Based on this mandate, the CNRR established the Group for Historical Memory (GHM) to develop an overall history of the Colombian armed conflict, focusing not only on its structural origins and dynamics, but also on the many voices, local histories, and experiences of the conflict, and in particular to elaborate a victim-oriented perspective. The GHM has undertaken research on emblematic cases of the armed conflict, each resulting in a published volume, broadly disseminated
through different media. Although it has some similarities to truth commissions in the region, the GHM considers its mandate as different and, at most, preliminary to that of a truth commission.

Judicial and Administrative Reparations: Victims’ Right to Reparation

The explicit recognition of victims’ rights is possibly one of the most salient features of the Law of Justice and Peace, in which the right to reparation for crimes committed by demobilized members of illegal armed groups has been the cornerstone for promoting and protecting the rights of victims. The principle of “integral reparations” (
reparación integral
) guides these efforts, seeking to provide victims with both material and symbolic forms of reparations, as well as satisfaction and guarantees of non-repetition.