Transitional Justice: What is the role of law in bringing imaginative and imaginary peace to Colombia?

This blog post is based on a reflection presented at the “Transitional Justice as Legal Field, Site and Imagination” panel at the Transnational Law Summer Institute, Kings College, London June 29, 2016. I am grateful to Prabha Kotiswaran and Peer Zumbansen for the invitation.  

What is the role of law in bringing imaginative and imaginary peace to Colombia?

June 23 2016 was described by Colombian and international media as the “last day of the war”, adopting FARC’s hashtag #ElÚltimoDíaDeLaGuerra. The signing of a bilateral ceasefire between the Colombian government and FARC formally ended hostilities in the world’s longest running war. The signing of a peace agreement is expected to take place during the summer of 2016.

To the overlapping academic fields of human rights, transitional justice and post-conflict reconstruction, the sophisticated Colombian transitional justice process is attractive and will likely be highly influential for the coming decade, both as an example of success and of failure. There is also a significant risk that scholars (outside Colombia) will embrace the Colombian experience either deterministically — as an example of systemic yet de-historicized power imbalances — or as a fantastical  and outsized legal progress narrative that can serve as an endless source of political models, constitutional processes and legal arguments suitable for embellishing the transitional justice juggernaut.

My argument in the following is based on one big supposition: I will put forward the idea that approached from a law and social change perspective, the Colombian transitional justice project is necessarily a failure foreseen.

“Everybody” knows that positive peace is not going to happen through legislation, decisions by a progressive Colombia Constitutional Court or the signing of a formal agreement. This Everybody also knows that if positive peace happens, it will not happen soon.  At the same time, it is easy to imagine that a year from now, politicians, ordinary Colombians, pundits and academics will dismiss the transitional justice legislation and the peace agreement as partial or total failures for their inability to perform the impossible expected by the Everybody; namely ending violence, providing reparations and changing the structural inequality that is the source of much of the violence.

However, I think that precisely at this juncture, as a community professionally engaged in the business of imagining peace and transitional justice, we need to reflect on what the critical takeaways from and beyond this failure foreseen could be. We may find that imagined and imaginative outcomes turn out to be imaginary. But this is not enough, it’s not even a starting point. We need to go beyond that.

Hence, after briefly describing the Colombian peace process, I will map out three sets of issues that could serve as tentative points of departure for critical reflection. This includes:

  • How we can gauge the meaning of the Colombian transitional justice process for Colombian citizenry, citizenship and the state;
  • The implications of Colombia being both outlaw and legal outlier for how we consider the role and place of the law in creating durable peace;
  • A first attempt to think through some of the general lessons Colombia can have for transitional justice practice and scholarship.

Peace and conflict as statecraft

The armed conflict between the government and FARC began in 1964. Separate negotiations have previously led to the demobilization of smaller guerillas (MAQL, M-19; EPL) and an agenda for formal negotiations has now been agreed with ELN.  However, Colombia has been at war or seen violent societal conflict for most of the time since the late 1890s. Colombian peace processes and attempts at political, legal and land reform are a fixture of Colombian statecraft. The last round of peace talks with FARC ended with fiasco in 2002. From 2003 president Uribe engaged in a much-criticized effort to demobilize the paramilitary AUC, with a basis in the 2005 Justice and Peace Law. Despite its shortcomings, it must be remembered that this framework has provided a platform for the current process.

Santos came to power in 2010, and continued Uribe’s military assault on FARC. However, while Santos had been Uribe’ defense minister and chosen heir, Santos soon dramatically scaled up the Colombian transitional process. The Victims Law was adopted in 2011. The negotiations began in Havana in 2012.  Unlike previous negotiations, there was no ceasefire.

By 2016, the political will of the Santos government and a greatly weakened FARC, supported and pressured by civil society and active facilitation by the international community have resulted in a remarkable transitional justice process. This process will soon culminate with the signing of a formalized agreement, probably either in the middle of July or the first week of August. Following the conclusion of a formal agreement, Colombia will hold a referendum on acceptance, whose outcome, as referendums go, is far from certain. Nevertheless, I believe it is timely to begin to think beyond formal outcomes.

 Vantage point: A proactive, critical approach to postulations of failure

As noted above, the following argument is based on a key assumption: In the likely event that a binding agreement, formally accepted by the Colombian electorate, will be thrashed as eventually disappointing, I think our task as scholars is to take a proactive approach: what are the critical approaches that will allow us to understand and then move beyond the constraints imposed by the analytical assumption of failure?

During the Colombian transitional process, the law has served as moral currency and discursive arsenal for the powerful and the downtrodden. The law has served a weapon but also been weaponized by the government, the courts and civil society.  This leaves us with a challenge: As academics, how do we envision the future relevance, potential and shape of law, when it has formally and perhaps substantially already over-performed as a vehicle for social change? How do we ask the right questions about the meaning of law’s role in what is unfolding? How do we pay adequate attention to Colombia’s long historical struggle for peace, and the specificities on the ground and in Colombian politics, while also drawing meaningfully on insights from the transitional justice paradigm? How do we study this relationship between law and society in a sufficiently multi and interdisciplinary way?

Colombian citizenry, citizenship and the state: Carving out normative issues

The first observation relates to what for me is the central key normative issue: How do we make sense of what the transitional justice process can do for the 8 million Colombian victims (and counting) in the concrete, and for Colombian citizenship in the abstract?

This question of what peace can be expected to deliver in the future, is intrinsically connected to what it has already delivered. At present, the picture is mixed. Hostilities have formally ended. Violence levels had already fallen to their lowest level since 1975. The kidnapping scourge that petrified the country in the 1990s and 2000s is almost gone.  According to the government, the Victims Law has lifted thousands and thousands of individual out of extreme poverty. All of these improvements may of course also some way or the other be described as imaginary or temporary. Commentators also note that the Colombian economy is in sharp decline, that there is a neo-paramilitary resurgence and that the threats against and murders of violence against human rights defenders, trade unionists and community leaders are at a 20-year high.

Nevertheless, at the same time, at the eve of the peace agreement, the Colombian process clearly gives meaning and relevance to the power of participation and symbolic reparations. As such, the peace process has already engendered an imaginative peace. To an unprecedented extent, Colombian civil society has been drivers of the peace process. Victims belonging to oppressed, terrorized and invisibilized social and ethnic groups have been stakeholders in Havana. Constituting moments of deep emotion and high symbolism in Colombian history, apologies have been issued directly by armed actors to victims.

There is also a normative methodological aspect to this consideration: As a field, law and society has a hard time with gap-studies, and is impatient with notions of “measurements” and “meaningful improvements”. Studies of effectiveness are often dismissed as “uncritical”. However, to make (critical) sense of and create accountability around the political economy of peace and claims regarding peace dividends, there is a real need to focus analytically and methodologically on the measurement of meaningful improvements in the everyday lives of Colombians. Only with a toolbox comprising of different research methods, methodological vantage points and a range of analytical-theoretical levels can we fully co-contribute to the kind of knowledge needed.

 The Symbolic power of law: the imagined versus real transitions and actual fragmentation

My second observation is that we need to understand what it means that Colombia is in many ways an outlier. Together, the government, the court system and civil society represent a tradition of hyper-charged production of sophisticated and groundbreaking but uncoordinated, unenforced and deliberately violently violated pieces of legislation.

The symbolic power of liberal law and activist courts in Colombia has been described as a substitute for actual political and military power over the Colombian territory.  Critics have argued that law serves both a promise of and a substitute for democratic governance. The lack of legal coordination between laws, decrees and court practice erects an insurmountable barrier to effective outcomes by making it technically, logistically, financially and logically impossible to grant every citizen everything they are legally entitled to. Moreover, the legal rights of the majority are systematically undermined by the illegal actions of powerful and/or violent actors that as a rule take what they think they are entitled to. It is not only the guerilla but also sections of the Colombian upper class and land-owning elite that for decade have used the war as a vehicle for illegal enrichment.

However, beyond the criticisms of utopian aspirations and lack of legal coordination, the particular “outlier” attributes of the Colombian transitional justice process also endows it with very significant productive power.  The law does something. This is not imaginary. Symbolic power is power. The 2005 Justice and Peace Law was accused of representing transitional justice without transition; Colombian law is currently moving the country through real transitions, with the transitional justice framework (broadly speaking) involved in attempts to distribute or re-allocate geographical spaces, financial resources and legal identities in the name of transitional justice. This productive capacity, and its empowering and disempowering attributes and outcomes, ought to be observed and analyzed in minute detail.

General lessons for transitional justice?

Finally, I want to begin to think about insights of more general importance for the transitional justice discourse.

The first point is a simple reminder to post law’s violence (a well-worn socio-legal concern) as an item on our analytical agenda.  The progressive IDP law and Constitutional Court decisions that created a space for legal mobilization in violent context also meant that activists would be exposed to threats, harassment, violence and murder. In the post-conflict setting, law engenders violence because it imposes fragmentation. Transitional justice by default produces new violent actors: a high percentage of demobilized FARC soldiers will probably face the choice between being exterminated by neo-paramilitaries or joining them, engendering new forms of violence. The demobilization scheme may be directly harmful to indigenous and Afro-Colombian communities and their territories. The reparations scheme will be (even more) overwhelmed and registered victims who have given their testimony to the State will feel betrayed. It will prove politically and environmentally disastrous that natural resources and mining issues have been kept out of the peace agreement. There will be significant violent resistance from land owning elites. This is not about law not working; this is about recognizing laws ambiguous nature as an instrument of power.

The second point is that we need to do a better job of challenging our ideas about foundational human rights “identities” and the work we make them do in transitional justice as end-of-history-narratives. This is a plea for paying more attention to the strategic choices made for and by grassroots actors in their dealings with transitional justice frameworks. In a way reminiscent of old dependence theories, human rights and transitional justice scholarship frequently appear to be preoccupied with what is construed as the problematic relationship between (female) victim-identities and empowerment.

In our project, this temporal trajectory turned out to be off: the activists we worked with proclaimed that “we are no longer IDPs, we are victims of displacement”. However, as illustrated by our interviews conducted with women IDP leaders, their experiences of enacting legal identities had much longer trajectories: they had previously been Cocalero activists, peasant leaders and so forth. These kinds of activities had frequently led to their displacement. For grassroots actors in a law-producing society like the Colombian, relying on serial ad- hoc embraces of legal identities that yield resources before the newness and the resources are exhausted, is a deliberate and carefully crafted strategy. We need to understand how this works and the meaning of grassroots actors as legal knowledge producers and users before making assumptions about whether there has been any transition, any justice or any transitional justice.

The third and final point  is that we now have to dispense with the fiction of a rule of law vacuum: the assumption that there is an empty space where law— any kind of progressive law—can contribute to peace by the mere act of coming into existence.  As a field of practice, transitional justice harbors an inbuilt (but perhaps more horizontal) law and development habit of borrowing, exporting and imposing law. I would argue that in the future, transitional justice processes will as a rule no longer involve the opportunity of dealing with a tabula rasa; i.e. as illustrated by the Colombian example, there will often be progressive law on the books, ratified human rights instruments and formal government bodies in existence when peace agreements are signed. When legal peacebuilding must be conducted in territory already crowded with progressive rule of law projects, the legitimacy and momentum provided by law reform projects disappears (and the competition for funding and attention intensifies).

Additionally, we must be cognizant of the way transitional justice law will sometimes undermine or cancel out other progressive law that protects civilians. As an example, the relationship between the 1997 IDP law and the Victim’s law has been ambiguous at times. The IDP law gave poor displaced people rights due to their ongoing impoverishment in the present, while the victims law gave victims, including middle class victims, rights based on present renditions of past experiences of violence which seemingly put individuals with very different ethnic and class backgrounds on a false platform of equality.

 Thus, in sum I would suggest that the practical politics of difficult overlaps and crowded fields take away some of the utopian possibilities often attributed to law reform in the context of transitional justice. On the other hand, it forces us to contemplate the type of tradeoffs made by the government, judges, activists and regular citizens in their dealings with transitional justice law.

*Over the last number of years, I have been privileged to work with Julieta Lemaitre (Universidad de Los Andes) on legal mobilization by displaced women and indigenous groups in Colombia. My insights are based on these projects. Mistakes are my own.

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