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.

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Colombia: After the War- What Future for Women?

As the peace process with FARC inches along in Colombia, a question remains unasked: after the war, what will the future look like for women?

This question was the focal point for a series of events at Universidad de Los Andes in Bogotá May 2 and 3, bringing together women grassroots leaders, Colombian cause lawyers, government officials and international scholars to imagine a Colombia after the war. From the viewpoint of transitional Justice (Ruth Rubio); social suffering (Lucie White) and suffering after war (Veena Das), and the Colombian conflict (Angélika Rettberg, Camila De Gamboa, Donny Meertens and María E. Wills).

Panelists were invited to imagine a future for women after the war, based on the premise that as academics committed to social justice, we have a high stake in ensuring women’s transformative and redistributive concerns are part of the post-conflict. And, more poignantly, that should the process fail to achieve peace for women, this be a failure of the will, not of the imagination.

Generally the experts were cautious. In the case of Colombia, even imagining an end to war is difficult. While a peace agreement between the government and the FARC guerrilla may be signed this year, such agreement will not mean an end to violence. The current war is only part of a long-lasting conflict that has torn apart several generations, and that today increasingly finds its expressions in illegal natural resource extraction practices, shady business deals, and the ubiquitous, armed presence of organized crime.

While the country is developing fast,  inequality levels remain among the highest in the world, and  murders and death threats  against social movement leaders, trade unionists, human rights defenders and other visible community leaders and intellectuals remain part and parcel of Colombian social and political life.

At the same time, Colombia is a constitutional democracy with a strong administrative state, and far-reaching legal protection mechanisms for vulnerable groups, mechanisms that are used actively by a plethora of grassroots organizations in their struggle for social change. It is also the scene of rapidly changing institutional mechanisms for both responding to the ongoing humanitarian crisis, and, if the government has its way, to ensure a transition to peace.

In 2011 the government and Congress adopted land-breaking legislation (Law 1448 of 2011) to repair victims of armed conflict, which, like the many Constitutional Court decisions which address the matter, take women’s concerns seriously. This legal framework replaced that of internal displacement as the official response to the humanitarian crisis, transforming the category of internally displaced people to a broad category of “victims” of different crimes by different perpetrators  under the 2011 victims law, all entitled to reparations in the truth/justice/reparations mantra of transitional justice.

Yet, the new system has met significant difficulties in implementation. These arise in part from the usual problems with setting up a new national agency with insufficient resources to deal with an enormous vulnerable population. They also arise from the persistent reprisals by illegal armed actors against potential beneficiaries and, increasingly, against officials of the victim’s relief programs.

In this context, hope is hard to muster, even in the protected hallways of the elite Universidad de los Andes. And while there is a substantive amount of civil society activism on feminist issues, most of this activism focus on making sexual violence, and its victims, visible. Few activists, if any, are asking difficult questions about the transformations (including redistribution of resources) that a peace process, with its ensuing transition, might bring for women, especially for the rural women who have born the enormous weight of war. Hence, we must keep asking the question: After the war; what future for these women?

Julieta Lemaitre and Kristin Bergtora Sandvik