Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (53 page)

The law envisaged provision of reparations resulting from each judicial process. The process starts with the registration by individual victims of human rights violations and criminal acts to which they or their closest relatives have been exposed.
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In the registration, the victim is asked to identify the individual victimizer or at least the group he belonged to, in order to establish a procedural link between victim and victimizer. By October 2010, 309,920 claims were registered, about half of them by the General Prosecutor’s Office (to which UNFJP belongs), the rest by other public agencies such as the National Registrar, or the CNRR.
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Reparations to the victims are to be provided by the relevant victimizer after a guilty sentence has been reached. If a victim is unable to identify his or her victimizer, then reparations will be provided from the Reparations Fund, which includes the assets provided by the
postulados
when joining the Justice and Peace process. The form and size of reparations will be decided through a special hearing known as
incidente de reparación
, in which victims put forward reparations claims that will be decided upon by the judge. By October 2010, only three cases had reached this stage. The judicial path to reparations is a very lengthy process and has being heavily criticized by victims’ organizations, human rights organizations, and civil society organizations alike.

Partly in response to criticism with respect to its commitment to victims’ rights, the government established an administrative reparations program in April 2008 (
Programa de Reparación Individual por Vía Administrativa
).
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While the judicial path demands a high level of evidence of victimization, the administrative path has a lower threshold of evidence, and is more favorable for those who cannot identify or are afraid to confront their victimizers, those who do not have the financial resources to bring their claim before the special courts, and those who were victims of organizations other than the paramilitaries. In this program, the state assumes the task of compensating the victims based on a principle of solidarity with the victims, and not out of responsibility for the crimes committed. The principle guiding the “solidarity compensation” (
indemnización solidaria
) is strongly defended by the state and challenged by victims’ organizations and CSOs.
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Administrative reparations only provide monetary compensation for crimes committed against individuals; they do not include damage to property.
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Compensation amounts vary depending on the nature of victimization, ranging from 27 to 40 basic monthly salaries, to be paid as a lump sum.
Acción Social
, in charge of the Reparations Fund, is mandated to establish and implement the administrative reparations program. Registration in this program did not exclude victims from the possibility of obtaining reparations from their victimizers through the judicial process. The original registration period for this program was two years, from April 2008 until April 2010. According to official figures, 331,604 applications had been registered by the closing of registration. The majority of applications concerned death and arbitrary killings; 78 percent were for homicides and 10 percent for enforced disappearance. The remaining 12 percent of applications referred to other crimes such as kidnapping, injuries, torture, rape and sexual violence, and recruitment of child soldiers. By October 2010, 20,837 families had received monetary compensation from the administrative reparations program.
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Victim reparations included the development of collective reparation initiatives, with the aim of restoring citizens’ rights and rule of law, particularly in those areas most affected by the armed conflict. Eight pilot projects of collective reparations have been implemented since 2007 by the CNRR, serving as the baseline for the current development of the Institutional Program on Collective Reparations. The often slippery issue of reconciliation has been addressed via the linkage of trust, democracy, and co-existence. In cooperation with relevant institutional partners, such as the High Commissioner for Reintegration and the Ministry of Education, the Reconciliation Unit at the CNRR aims to raise national awareness about reconciliation promoting it at the policy level.
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The CNRR has sought to promote victims’ rights and a victim-oriented perspective in the various components of the Colombian transitional justice scheme. Through its extensive regional networks and in cooperation with public institutions at the regional and local levels, the CNRR succeeded in putting the rights of victims on the national public agenda. The CNRR has developed a nation-wide outreach program, organizing advisory and counseling sessions for victims (known as
Jornadas de Atención a Víctimas
), preparing user-oriented information including audio-visual material, in-depth analysis, and reports, and participating in the public debate and more.
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Inter-Institutional Coordination in the Justice and Peace Framework

The implementation of Law 975 requires the participation of several public agencies and institutional actors, most notably, the Special Unit for Justice and Peace at the Office of the Prosecutor General (UNFJP), the CNNR, and
Acción Social
, each of them with their own departments and units, fulfilling various tasks either independently or in collaboration with other institutions. There are also several cross-cutting, inter-agency coordinating bodies that have been created
with representatives from these and other public institutions. While Law 975 introduced a transitional justice approach to the demobilization of illegal armed groups and the resolution of the armed conflict, transitional justice as a specific area of public policy was not formally established before 2008, when the Ministry of Interior and Justice was reorganized and the Department for Transitional Justice (DTJ) was created in November to formulate, coordinate, and promote a public national policy on transitional justice.
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The department is mandated to oversee the inter-institutional coordination regarding the implementation of Law 975 and the various laws regulating demobilization and reintegration and also functions as the Technical Secretariat for the Inter-institutional Committee for Justice and Peace, led by the Minister of Interior and Justice. Several functions of this department are similar to those of the CNRR; however, the scope of the DTJ is more oriented towards policymaking and monitoring,
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while the CNRR has a more operational and advisory role. Given the complexity, the variety of components, and plurality of actors involved in the Justice and Peace process, it is likely that the DTJ, placed as it is within a government ministry, will play a key role in the future development of the process.

Internal Displacement and Restitution of Land and Property

One of the most notable features of the Colombian armed conflict is the massive numbers of internally displaced persons (IDPs). Figures vary, but the number of IDPs is nevertheless in the millions. Official figures by
Acción Social
indicate 3.3 million IDPs, while non-governmental organization and coordinator of the follow-up commission on internal displacement, CODHES, suggests that 5.1 million people were displaced in Colombia in the period 1985–2010, roughly 11 percent of the entire Colombian population.
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This phenomenon is so extensive that any attempt to secure the rights of victims in Colombia will need to take into account the rights of the largest group of victims in the country: victims of forced or arbitrary displacement.

The attention of the Colombian state to the victims of internal displacement precedes the Justice and Peace process and can formally be traced back to 1997.
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The protection of the rights of IDPs, however, did not improve, and in 2004 the Constitutional Court described “an unconstitutional state of affairs” with regard to Colombian IDPs.
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A civil society initiative called the “Follow-up Commission on Public Policy regarding Internal Displacement” was established in November 2005 and has played an active role in the development of indicators and recommendations on internal displacement ever since. Since 2007, the Follow-up Commission has undertaken several studies and reports at the request of the Constitutional Court to monitor the situation of IDPs and progress concerning their rights. Several mechanisms have been implemented, mostly coordinated by
Acción Social
through the National System for the Attention of Displaced Population (
Sistema Nacional de Atención Integral de Población Desplazada
—SNAIPD).
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While Law 975 does not mention forced displacement directly, it does create an institutional mechanism for restitution of land and property via Regional Commissions for the Restitution of Property, while giving the CNRR the mandate to coordinate the activities of the regional commissions.
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Land and property restitution is an extremely complex issue in Colombia, both in terms of the technical and administrative challenges it poses and in regards to the strong economic and political interests involved. Land and property restitution as a form of victim reparations would have to deal with, for example, the co-existence of several forms of property and tenure, incomplete cadastral records, the existence of parallel registration systems, multiple registrations and claims over the same property (both simultaneously and over time), coercive practices of land expropriation and usurpation (often legalized through formal and judicial channels), and the presence of strong economic actors and activities in disputed lands.
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While the CNRR advanced an agenda concerning restitution of land and property, and implemented a number of pilot projects to test different modalities for restitution, progress in this area has been relatively limited.
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Security challenges for both the returning populations and community leaders leading restitution claims jeopardize the few advances made.
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Forced or arbitrary displacement is explicitly identified as a crime under the individual administrative reparations program. Benefits for IDPs under this program are provided by family unit through housing support. IDP families already registered under the SNAIPD have automatic access to the administrative reparations program, although double benefits are not allowed.
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This could explain the relatively “low” number of people registered in the administrative reparations program compared to the millions of Colombian IDPs. While housing support schemes may alleviate some of the immediate and short-term needs of displaced families, displaced families appear to aspire to return and restitution.

The Victims’ Law of 2011: Strengthening Victims’ Rights

As discussed above, components of the Justice and Peace process have developed at different speeds and there have been limitations. The design and implementation of a comprehensive victim reparations program that goes beyond monetary compensation is still pending. The first proposal focusing on victims’ rights and reparation was presented to Congress in 2008 and dismissed the following year.
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Six weeks after assuming power in August 2010, president Juan Manuel Santos presented a proposal to the national Congress promising to address “the pending debt” that the country owed the victims of the armed conflict, which became known as the “Victims’ Law.” Shortly after, separate proposed legislation on land restitution was merged with the victims’ legislation, placing the issue of internal displacement and land restitution at the center of a national program for victim reparations. Outreach activities by the CNRR and civil society organizations, congressional debates, and wide media coverage promoted public discussion of the legislation, which was approved by Congress on 1 June and signed on 10 June 2011 as Law 1448 of 2011. The legislation has been welcomed by broad sectors of
Colombian society, including victims’ organizations, for seeking to address victims’ rights, particularly land and property restitution.
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The law includes victims of both illegal armed groups such as paramilitaries and guerrillas, and members of the Colombian police and armed forces. Victim reparations can be claimed for harm since 1985, while land and property restitution applies to acts since 1991. The law establishes new institutions, including the creation of a national victims’ registry, a national system for victims’ reparations, and a national network for victim reparations served by a specialized administrative unit, a national registry for usurped lands, a specialized unit for land restitution, and a center for historical memory. The main task of these institutions is to develop and implement a national reparations program that includes compensation, restitution, rehabilitation, and guarantees of non-repetition for the victims; the threshold of proof has been significantly reduced in favor of the victim. Since late 2011, the government has passed the regulations needed to implement Law 1448.
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The law transformed
Acción Social
into an administrative department, the Department for Social Prosperity,
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which will encompass some of the new units. Others, such as the Land Restitution Unit, are based in the Ministry of Agriculture, which is in the process of opening 21 offices across the country.
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The law does not affect the judicial processes implemented under Law 975.

DDR Completed?

The Colombian process brings together the demobilization of armed actors with the rights of victims. A point of departure for the process has been the collective and progressive demobilization of paramilitaries from 2002–06, followed by the gradual and individual demobilization of guerrilla soldiers since 2002. According to official numbers, by 5 November 2010 22,704 members of illegal armed groups had demobilized individually, two-thirds of these FARC guerrillas.
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