Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (23 page)

Maria José Guembe

University of Notre Dame

Helena Olea

University of Notre Dame

After more than 50 years of political violence, Colombia confronts the possibility of negotiating the disarmament, demobilization, and reintegration of at least one of its armed actors. Colombians and the international community welcome the possibility of putting an end to the increasingly bloody internal armed conflict and consequently reducing the number of executions, disappearances, kidnappings, and wounded and displaced persons. However, the fact that there are two types of non‐state armed actors, guerrillas and paramilitaries, who have committed grave crimes, including human rights violations and crimes of war, and that most of these groups are involved in drug trafficking complicates any resolution to the conflict. The new interplay between domestic and international legal systems and standards also presents interesting challenges.

For two years the Colombian Congress considered different versions of governmental initiatives on differentiated criminal treatment for members of armed groups willing to disarm and demobilize. The first draft introduced by the Uribe administration in October 2003 included elements of punishment, conditional parole, and reparations, but also had a number of shortcomings. Domestic and international actors pressured the government to modify the draft legislation. Congress became dissatisfied with the executive's amended draft and no effort was made to move forward. The executive submitted another draft to Congress in February 2005 after earlier efforts to submit a joint initiative with a group of Congress members failed. By March 2005 eight congressional initiatives, in addition to the executive's draft bill, had been submitted to Congress. The government soon succeeded in obtaining support for its initiative, which was approved with minor changes by Congress in June 2005.

The Colombian government and the armed actors are slowly beginning to realize that developments in international law limit the possible solutions to the conflict. Negotiating the termination of an armed conflict today is not as simple as it was ten or even five years ago. Blanket amnesties and general pardons are not an option, not only because of the political pressure that victims groups may exert, but also because these practices do not stand the test of international standards and institutions. Trying to ignore or defy these standards will simply trigger one or more of the mechanisms that protect victims' rights to truth, justice and reparation.

The approved bill will have to stand the
test of international standards set forth by the
Inter‐American Court of Human Rights, the
UN Human Rights Committee, and the Colombian Constitutional Court. It will also have to take into account that Colombia ratified the Statute of the
International Criminal Court (ICC) and is subject to the ICC's jurisdiction, which any peace settlement should avoid triggering.
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Additionally, the criminal justice interests of other states may pose a constraint on possible peace settlements. Other states have initiated criminal investigations and
prosecutions, and have requested the extradition of members of the armed groups for crimes committed in Colombia because of the victim's nationality, or because part of the crime was committed in another state, as in the case of drug trafficking. These extradition requests, actual and potential, play a role in each side's maneuvering around peace negotiations, and hang over any attempts at
settlement.

Colombia's solutions should take into account the experiences of other countries in terms of strengthening democracy and the rule of law by supporting accountability for war crimes and crimes against humanity. They should also be pragmatic, taking into account the capabilities, strengths and shortcomings of the justice system that will have the burden of implementing the mechanism created by the new law. As some have described it, a balance needs to be found where there is as much justice as possible, and as much impunity as is necessary. However, it appears that the outcome fails to find such a balance.

This chapter describes the tensions and opportunities created by the interplay between domestic and international constraints on the negotiation process. We begin with a brief overview of the armed conflict and the peace negotiations. Next, we describe the main elements of the recently approved legislation. We then proceed to analyze it in light of the international legal framework and present our conclusions.

Colombia is in the midst of an internal armed conflict in which most of the victims are civilians. The origins of this conflagration can be traced back to the period known as
La Violencia
(The Violence).
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The period began with the slaying of Jorge Eliécer Gaitán, an independent presidential candidate for the Liberal Party, in 1948. And it continued with a massive violent outbreak that resulted in the assassination of thousands of persons by members of the opposing political party.
La Violencia
was mainly a rural phenomenon and its victims were mostly candidates for public office and community leaders. In 1953, against the backdrop of chaos and violence, Augusto Rojas Pinilla, General in Chief of the Colombian Army, led a coup and seized power. Rojas Pinilla's rule lasted until 1958, when after mounting pressure he was ousted by an alliance of conservative and liberal leaders who drafted and promoted the
Frente Nacional
(National Front) accord. Under the accord, the agreement of the major parties to alternate governmental control succeeded in decreasing the number of political assassinations but also eliminated political alternatives outside of the Liberal and Conservative parties. As an unintended consequence of the agreement, both parties lost their ideological and electoral base because their rotation into power was assured. In spite of the termination of the
Frente Nacional
in 1970, the Conservative and Liberal parties failed to build a clear political agenda, turning into purely electoral machineries at the local, departmental, and national level.
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Guerrilla groups emerged in Colombia in the 1960s influenced by social revolutionary ideas, and in response to military repression, political violence and the lack of political options for the left. Small‐scale communist organizational efforts in rural areas were violently repressed, leading to the creation of
Fuerzas Armadas Revolucionarias de Colombia
– FARC (Revolutionary Armed Forces of Colombia).
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Almost simultaneously, another guerrilla group emerged,
Ejército de Liberación Nacional
– ELN (National Liberation Army), formed by urban middle class intellectuals influenced by the Cuban revolution.
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Subsequently, myriad smaller guerrilla groups surfaced, including
Ejército Popular de Liberación
– EPL (Popular Liberation Army),
Manuel Quintín Lame
,
Partido Revolucionario de los Trabajadores
– PRT (Revolutionary Workers Party), and
Movimiento 19 de Abril
– M‐19 (the 19th of April Movement). Since their formation, Colombian guerilla groups have claimed allegiance to leftist ideologies and justified their use of force as a response to the impossibility of winning public office in a corrupt and closed political party system.

Due partially to the Armed Forces' frustration with its incapacity to defeat the guerrillas militarily and also to the rising influence of drug lords who created private armies to protect themselves and their property, paramilitary or self‐defense groups emerged in the 1980s. These groups of armed men were able to fight the guerrillas unbounded by the rule of law, unlike the military, which was feeling increasingly constrained by human rights monitoring. The Armed Forces envisioned that the creation of these groups would allow them to gain the upper hand in their struggle against guerrillas. Other sectors of society, particularly landowners and corporations, politically and financially supported the creation of paramilitary groups as part of their defense strategy against guerrilla groups, which were targeting them through kidnappings and extortion schemes. Numerous incidents of connivance, cooperation, or lack of effective will to curb the unlawful actions of paramilitary groups unequivocally illustrate the ties between Armed Forces units, commanders and officers, and the paramilitaries.
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By the 1990s most
paramilitary groups were organized under an umbrella organization,
Autodefensas Unidas de Colombia
– AUC (United Self‐Defense Forces of Colombia), but a few small groups remained independent.
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In order to fill the vacuum left by the disintegration of large drug cartels in Colombia (e.g., the Cali and Medellín Cartels) and as a way to augment significantly their incomes, both guerrillas and paramilitaries moved into the drug business. Their incursion into drug trafficking also reflected changes in the production of coca and heroin. Drug cultivation, production and commercialization are today essential to the economic sustainability of illegal armed actors in Colombia.
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Their strength has multiplied, as measured by the number of active soldiers and weaponry. Today, guerrillas and paramilitaries control distinct areas of the country where they extort from landowners and corporations in proportion to the income earned, in an illegal taxation scheme. Their enforcement mechanisms include killings, torture, and kidnappings.

The intervention of the United States exacerbated the cycle of violence. The
US government provides significant military assistance to Colombia claiming that it is part of their counter‐narcotic strategy.
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Since the 1980s, the US government has requested Colombia's cooperation in the extradition of drug traffickers. As the link is established between drug trafficking and guerrillas and paramilitaries, the United States is now requesting the
extradition of high‐ranked members of these unlawful groups mostly on drug trafficking charges. US assistance has augmented the military capacity of all armed actors, and thus an increase in military confrontations and casualties, while the extradition policy has
fueled the increasing belief by leaders that there are few alternatives to waging war.
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In the last ten years, the increased military power of both guerrillas and paramilitaries has resulted in their effective control of portions of territory.
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As the military strength of non‐state parties has grown, so has their propensity to infringe the laws of armed conflict. Indeed, they now commit serious crimes on a scale not seen before. This is in part explained by the fact that the armed parties' military strength has come as a result of targeting civilians, rather than actually combating each other and the state's armed forces.

Presidents Belisario Betancur (1982–86), Virgilio Barco (1986–90), César Gaviria (1990–94)
all attempted peace negotiations. During the Samper administration (1994–98), the government attempted to negotiate once more with the remaining active guerrilla groups, FARC and ELN. Those efforts proved futile, however. President Andrés Pastrana (1998–2002) was elected on a peace negotiation platform. Negotiations with FARC failed, even though, as requested,
FARC was granted full control of a demilitarized zone the size of Switzerland. The Pastrana administration also engaged in unsuccessful negotiations with
ELN. The possibility of negotiations with AUC or any paramilitary forces was never
considered.
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In May 2002, Alvaro Uribe was elected on a strong military platform that promised the defeat of the guerrillas and urged the Armed Forces to combat paramilitary groups. A few months after taking office, government officials began discreet and confidential talks with AUC. In contrast to negotiations with paramilitaries, the Uribe administration has achieved very little with guerrilla groups. While Uribe demands a cease fire as a prerequisite to negotiations, FARC and ELN request a demilitarized zone where they can concentrate their combatants. Discussions with
FARC have not progressed satisfactorily, despite national and international efforts.
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Similarly, negotiations attempts with the
ELN have encountered numerous obstacles.

Until 2002, the possibility of negotiating the disarmament of paramilitary forces was not considered viable, as the legal framework and political environment did not support it. Unlike the guerrilla groups, AUC lacks even a stated political agenda, which creates a legal and political constraint in negotiations with them. On December 1, 2002 AUC announced a unilateral and unlimited cease‐fire as a demonstration of their willingness to move forward with peace negotiations. The
AUC gesture was a calculated one, as Congress had just passed draft legislation that opened the possibility of these negotiations.

On December 23, 2002,
President Uribe approved Law 782 of 2002, which modified Law 418 of 1997, the statute that set forth mechanisms for peace negotiations, including demobilizations. These earlier laws provide
amnesties for certain crimes and economic benefits to all members of illegal armed groups who voluntarily desert or demobilize, so long as they have not been charged with the commission of a serious violation of international human rights or humanitarian law. The modification removed the requirement for unlawful armed organizations to be of a political nature in order for the government to negotiate with them. Law 782 of 2002 thus opened the way for negotiations and demobilization of paramilitary groups, an opportunity that both the Uribe administration and AUC were eager to exploit. A few days later, a commission was created to explore alternatives for negotiations with the paramilitaries.
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