Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (54 page)

While Law 975 explicitly deals with the legal benefits to which demobilized personnel are entitled under the Justice and Peace scheme, Law 782 of 2002 regulates procedures of demobilization and reintegration.
⁷⁷
Several regulatory decrees were issued from 2003 to 2007, establishing, among other things, the creation in 2006 of the High Advisory on Reintegration (
Alta Consejería para la Reintegración
, ACR), a unit strategically placed at the Office of the President with a mandate to develop, implement, and evaluate a national policy on the social and economic reintegration of demobilized paramilitaries and guerrillas, in coordination with the Ministry of Defense (MD), the Ministry of Interior and Justice, and the (now closed) Office of the High Commissioner for Peace.
⁷⁸

Since its creation, the ACR has developed a number of programs, providing social and educational services, health services, occupational training, and support for income-generative activities, and psychosocial counseling for the demobilized and their families. In December 2008, the ACR succeeded in establishing a public national policy on reintegration.
⁷⁹
Institutional development in reintegration was parallel to developments in transitional justice. Operationally regulated by two different bodies of law and developed from two different institutions, the
goals and strategies are converging in practice. One example is the work done by the CNRR’s Area on Reconciliation, which has identified the ACR as a strategic partner for its project implementation. The ACR recognizes the important role that the effective reintegration of the demobilized into civilian life in local communities has in breaking the cycle of violence and is seeking to coordinate with other public agencies.
⁸⁰

Unfortunately, while a large number of paramilitaries and guerrillas have been demobilized, there are continuous reports of the presence of illegal armed groups in various parts of the country, operating with similar modalities to that of former paramilitaries.
⁸¹
In its first report on DDR, the CNRR confirmed the emergence and/or reorganization of illegal armed groups and called for decisive action to dismantle possible new paramilitary structures.
⁸²
The report identified three types of illegal armed groups: dissidents (those belonging to demobilized AUC, who refuse to demobilize), rearmed groups (those who took up arms again after having demobilized), and emergent groups (new groups forming after the demobilization process).
⁸³
In a second report on DDR, the CNRR examined the nature and dynamics of operations of these illegal armed groups, exploring the negative effects these have on the reintegration part of the DDR process.
⁸⁴
While the illegal armed groups show diversity in form, structure, membership, and operations, they do share some common features: links to illegal and criminal activities such as narco-trafficking, the use of extortion and violence, and abuse of power. There is also evidence that these groups often operate with the direct or indirect support of local public officials and members of the police and armed forces.
⁸⁵

The presence of illegal armed groups is a reminder that effective territorial control by state forces and public institution is yet to be achieved in Colombia. The demobilized population is not only a target of new recruitment by these groups, but they and their families are also targets of threats and violence by groups active at regional and local levels. The existence of illegal armed groups also represents a threat to the security of victims participating in the Justice and Peace process. This situation is particularly acute in areas affected by internal displacement. On average, ten victims of internal displacement have been killed every year since 2007 in various parts of the country.
⁸⁶

In spite of their many advances, both the DDR and the Justice and Peace processes are still vulnerable to sudden changes and/or socio-political turmoil. In 2010, a challenge was brought before the constitutional court regarding the application of the “principle of opportunity” under Law 1312 of 2009 to exempt demobilized personnel from investigation and prosecution. In November 2010, the Court declared Law 1312 unconstitutional, on the grounds that the principle of opportunity had been designed to apply to regular criminal acts, and not as part of a political process such as demobilization and peacebuilding.
⁸⁷
The court held that the duty of the prosecutor to investigate all acts of criminal conduct could not be removed by the principle of opportunity, and that doing so would go against basic principles of Colombian and international human rights law. As a direct consequence of this decision, more than 31,000 demobilized former
paramilitary members could face arrest orders for having been part of illegal armed groups; the partial and conditional amnesty granted by Law 975 would cease, creating an uncertainty which could affect the reintegration process. In an unprecedented effort by several public institutions, including the ACR and DTJ, a new law was passed by Congress in December 2010, making explicit reference to the demobilized personnel and their obligations regarding the fulfillment of victims’ rights.
⁸⁸

Conclusions

In introducing this chapter, I asked whether accountability and DDR could be applied at the same time in pursuit of peace. While the experience of Colombia demonstrates that it is possible to implement transitional justice mechanisms before a full ceasefire with all armed actors is in place, it also demonstrates that benefits such as partial and conditional amnesties, reduced sentences, and reintegration programs are effective incentives for the demobilization of armed actors. The rights of victims can effectively be incorporated in legal tools that are designed to move forward with conflict resolution, peacebuilding, and transitional justice. The effective implementation of such policies, however, faces a number of challenges.

The institutional challenge is perhaps the most visible one. Institutional developments have proceeded in transitional justice and DDR in parallel, with relatively little interaction with each other until recently. Even within transitional justice, several public agencies are involved, not always in tune with the activities and objectives of others. Implementing a transitional justice process alongside a demobilization process is not only a very demanding administrative project, but it also involves a process of institution-building that governments may not be aware of or prepared for. New institutions will have to be developed and interagency coordination reinforced or established. Countries emerging from armed conflict may not have the capacity and resources to manage such complex institutional challenges. In Colombia, new institutions have been created, developed, and expanded, and have carved a space for themselves, their mandates, and agendas in national policy. These processes are not just bureaucratic ones, but have a direct impact on the lives of victims and demobilized paramilitary and guerrilla fighters.

The Colombian process demonstrates the limits of maximalist ideals of retributive justice. The judicial path to reparations has proven slow and limited despite significant efforts. The slowness of the process creates the perception that justice is simply dragging on rather than addressing victims’ rights to justice and reparations. The scope of the issues and measures developed as a result of the Justice and Peace process has expanded exponentially. The challenge, therefore, is how to make the process manageable without giving away the goals of justice, peace, and reparations for the victims.

The new Victims’ Law opens the way for the establishment of an extensive administrative reparations program, similar to other processes on the continent,
where administrative programs are predominant. The use of selective prosecutions may be a way to address the significant number of cases blocking the system. This would entail proceeding with prosecutions with a few selected charges that can guarantee an indictment for the victimizers, without having to wait for the investigation of all cases. This is a common approach in both national and international tribunals dealing with human rights violations and core international crimes. Engaging in transitional justice and DDR at the same time is challenging. From a basis of the imperfect but much-needed implementation of the Law of Justice and Peace, Colombia now enters a new phase for the implementation of victims’ rights.

Notes

1
 Law 975 of 2005.
Por la cual se dictan disposiciones para la reincorporación de miembros de grupos armados organizados al margen de la ley, que contribuyan de manera efectiva a la consecución de la paz nacional y se dictan otras disposiciones para acuerdos humanitarios
, Congress of the Republic of Colombia (CRC).

2
 The CNRR is an independent body created by Law 975 for a period of eight years, composed of 11 commissioners from different public sectors and representatives from victims’ organizations and civil society.

3
 Jemima García-Godos and Knut Andreas Orgland Lid, “Transitional Justice and Victims’ Rights before the End of a Conflict: The Unusual Case of Colombia,”
Journal of Latin American Studies
, vol. 42 (2010), pp. 487–516.

4
 Law 1448 of 2010.
Por la cual se dictan medidas de atención, asistencia y reparación integral a la víctimas del con
fl
icto armado interno y se dictan otras disposiciones
, CRC. Approved and ratified on 10 June 2011. This law was designed to address victims’ rights directly, in particular, victims’ right to restitution of land and property.

5
 Jonathan Hartlyn,
La política del régimen de coalición; La experiencia del Frente Nacional en Colombia
(Bogotá, 1993); Robert H. Dix, “Consociational Democracy: The Case of Colombia,”
Comparative Politics
, vol. 12, no. 3 (1980), pp. 303–21.

6
 Colombian scholars debate whether the current conflict is simply the continuation of the bipartisan violence, or if it is governed by different dynamics. See Francisco Gutiérrez, María Emma Wills, and Gonzalo Sánchez (eds),
Nuestra guerra sin nombre. Transformaciones del con
fl
icto en Colombia
(Bogotá, 2006); Andrés Dávila,
El juego del poder: Historia, armas y votos
(Bogotá, 1998); Fabio Sánchez, Ana María Díaz, and Michel Formisano, “Conflicto, Crimen Violento y Actividad Criminal en Colombia: Un Análisis Espacial,”
Documentos CEDE
(Bogotá, 2003).

7
 All figures are from Diego Otero,
Experiencias de investigación: Las cifras del conflicto colombiano
, (Bogotá, 2008), available at <
http://www.setianworks.net/indepazHome/attachments/191_cifras%201964%20–2007.pdf
>.

8
 Internal Displacement Monitory Centre (IDMC), available at <
www.internal-displacement.org/idmc/website/countries.nsf/(httpEnvelopes)/A7E1B7BD7528B329C12575E500525165?OpenDocument#expand
>; accessed 22 September 2009.

9
 Norman Offstein, “An Historical Review and Analysis of Colombian Guerrilla Movements: FARC, ELN and EPL,”
Revista Desarrollo y Sociedad
, no. 52 (September 2003), pp. 99–142; Ricardo Peñaranda, Javier Guerrero
et al
. (eds),
De las armas a la política
(Bogotá, 1999).

10
 Decree 3398 of 1965.
Por el cual se organiza la defensa nacional
, Presidency of the Republic of Colombia (PRC).

11
 Law 48 of 1968.
Por la cual se adoptan como legislación permanente algunos decretos
, CRC.

12
 Decree 1194 of 1989.
Por el cual se adiciona el decreto legislativo 0180 de 1988, para sancionar nuevas modalidades delictivas, por requerirlo el restablecimiento del orden público
, PRC.

13
 
Decree 356 of 1994.
Por el cual se expide el estatuto de vigilancia y seguridad privada
, PRC.

14
 In his biography, former paramilitary leader Carlos Castaño considered the decree to have favored self-defense groups closely aligned to the drugs trade. Current president Alvaro Uribe used this decree actively while holding the position of governor in the state of Antioquia. See Mauricio Aranguren,
Mi confesión
(Bogotá, 2001). See also Fabio Sánchez and Mario Chacón, “Conflict, State and Decentralisation. From Social Progress to Armed Dispute for Local Control 1974–2002,”
Crisis States Programme, Working Paper No. 70
(2005).

15
 Yamile Salinas, Darío Gonzáles, and Eliza González,
Tierra, oroyconflictos
(Bogotá, 2008).

16
 Nazih Richani, “The Political Economy of Violence: The War System in Colombia,”
Journal of Interamerican Studies and World Affairs
, vol. 39, no 2 (1997), pp. 27–81.

17
 Gustavo Duncan,
Los señores de la guerra. De paramilitares, mafiosos y autodefensas en Colombia
(Bogotá, 2006).

18
 “Congreso, En La Mira Para,”
El Tiempo
(17 March 2002). This was subsequently substantiated by Colombian researchers and information provided by former paramilitary leaders during the Justice and Peace hearings. These events are known today as “the
parapolítica
scandal.” See Mauricio Romero (ed.),
Parapolítica. La ruta de la expansión paramilitar y los acuerdos políticos
(Bogotá, 2007).

19
 
Acuerdo de Santa Fé de Ralito para Contribuir a la Paz en Colombia
(2003).

20
 
Proceso de Paz con las Autodefensas: Informe Ejecutivo
(Bogotá: Alto Comisionado para la Paz, 2006).

21
 Law 418 of 1997.
Por lo cual se consagran unos instrumentos para la búsqueda de la convivencia
, CRC. Law 548 of 1999.
Por medio de la cual se prorroga la vigencia de la ley 418 del 26 de Diciembre 1997
, CRC.

22
 Law 782 of 2002.
Por medio de la cual se prorroga la vigencia de la ley 418 del 26 de Diciembre 1997, prorrogada y modi
fi
cada por la ley 548 de 1999 y se modi
fi
can algunas de sus disposiciones
, CRC.