Entry Transitional Justice Colombia in Encyclopedia of Transitional Justice

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Roht-Arriaza, Naomi. 2005. The Pinochet Effect: Transnational Justice in the Age of Human Rights. University Park: Penn State University Press. The Judge and the General. DVD. Directed by Elizabeth Farnsworth and Patricio Lanfranco. US/Chile: Westwind Productions. 2008.

Colombia Colombia’s experience with transitional justice is one of the most belated in Latin America, making the country an outlier in the region. Some have even questioned whether a transition has actually occurred, given that the conflict is ongoing. Yet the paramilitary demobilization started in 2003 was significantly extended by the Justice and Peace Law, which led to the dismantling of the military structure of one of the conflict’s main protagonists, the right-wing paramilitary group Autodefensas Unidas de Colombia (AUC), an important decrease in violence levels, and the revelation of key truths framed by a transitional justice discourse centered on local justice. The Repressive Past

Since the 1960s, Colombia has experienced an ongoing armed conflict between the military forces and left-wing guerrillas, exacerbated by drug-trafficking and right-wing paramilitary activities since the 1980s. While the atrocities committed by the guerrillas were as heinous as those of the paramilitary, this section focuses on the paramilitary because Colombia’s transitional justice has targeted the AUC paramilitary more than the guerrillas, which demobilized individually. Colombia’s transitional justice, unlike that of its neighbors, has occurred in the midst of conflict. Between 1980 and 2002, the country was one of the most violent in terms of the number of homicides per 100,000 inhabitants and scored a world record in kidnappings. The number of forced displacements remains second only to Sudan. The excesses committed in the internal armed conflict have constituted serious human rights violations against the civilian population. According to the Inter-American Commission of Human Rights (ICHR), these forced displacements and violent crimes have affected more than 2 million individuals. The exact number of victims of the political conflict is unavailable, because the violence associated with the conflict has been accompanied by violence associated with common and organized crime. According to the Attorney General’s Office (Fiscal´ıa), 230,516 victims and their families have benefited from the Justice and Peace Law, which regulates paramilitary demobilization. According to Rettberg (2011), who surveyed a representative number of victims of the armed conflict, there is a worrisome proximity between victims and perpetrators; one-fifth of the victims and their families knew their assailants. Her findings also indicate widespread poverty and precarious living conditions for most victims, and an overwhelming number of women and children among them. Identifying the perpetrators from among left-wing guerrillas and paramilitaries raises a number of challenges. The difficulty is compounded by the fact that the AUC did not fight the state, which in fact benefited from their war against the guerrillas. The latter led to unsavory alliances between sectors of the public force and the paramilitaries. Despite these difficulties, it is generally agreed that the massacres and disappearances were mainly perpetrated by the paramilitaries, whereas kidnappings and land mines were mainly guerrilla tactics.

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While paramilitaries have existed in Colombia since the late 1960s, initially as legal self-defense organizations, they rapidly degenerated through their alliances with drug traffickers, leading to the declaration of their illegality in 1989. Their most brutal period occurred between 1997 and 2002, when the AUC reached unprecedented success in terms of territorial control, military organization, and enrolment levels (reaching 13,150, according to Verdad Abierta). This period was one of the bloodiest in Colombian history. The paramilitaries’ violence went hand in hand with their territorial and political expansion and control of drug trafficking. The overall impact is well illustrated with the generalized growth rate of homicides coinciding with their expansion in 1997–2002, and its immediate drop almost as soon as the paramilitaries demobilized. This was the case in the city of Medellin, one of their bastions from 2003 to 2007. In Colombia, homicide rates peaked in 2002 with 28,837 (that is, 80 homicides per 100,000 inhabitants), a number that contrasts with the 50 percent drop in the total national homicide rates since 2002. Moreover, the nongovernmental Colombian Commission of Jurists documented 14,677 people killed or disappeared outside combat, allegedly by paramilitaries, between July 1996 and June 2007; yet these figures barely reflect a tenth of the currently registered number of victims. Forced displacements are also numerous. According to the state agency in charge of collecting data on the internally displaced, Accion ´ Social, there are today 3,115,266 displaced persons in Colombia (7.8 percent of the total population). A 2004 survey showed that 46 percent of the internally displaced were running from the guerrillas, 22 percent from the paramilitary, and 1 percent from state forces (Ib´anez ˜ 2008). Unfortunately, the annual number of forced displacements has continued to rise even after demobilization. The recruitment of minors is another problematic issue. Demobilized AUC excombatants have confessed to at least 1,020 such recruitments, while data from the Ministry of Defense shows that 2,700 of the demobilized were minors. Ex-paramilitaries have also assumed responsibility for 1,776 disappearances and 1,473 extortions. According to the World Bank and the Colombian Human Rights and Displacement Office (CODHES), between 3.5 million and 4.5 million of hectares of land were expropriated by the paramilitaries, who still control them. Although demobilized paramilitaries have not yet acknowledged the expropriation, scholars have demonstrated that starting in 1997, the paramilitaries acquired vast stretches of land by forcefully displacing small landowners. Other crimes perpetrated by the paramilitaries have not even been documented. For instance, a study by the Ombudsman’s Office revealed that 20 percent of displaced women have been victims of sexual crimes. This overwhelming evidence, while still incomplete, is a clear indication of the paramilitaries’ repressive past. Transitional Justice

In Colombia, transitional justice does not stem from a transition to democracy like in most of South America, but from the 2003–2006 demobilization of the AUC paramilitary who claimed to represent more than 90 percent of the active paramilitaries. The state’s responsibility was pointedly excluded from the transitional legal framework, despite evidence of involvement, either by inaction to protect civilians from paramilitary attacks, as in the El Salado Massacre (in which forty people were killed in 2000), or by collusion of some army members, as in the recent Falsos Positivos scandal (which involved extrajudicial killings of civilians).

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The Legal Framework for Transition Demobilization and the adoption of transitional justice methods have been gradual and followed three distinct periods. In 2002–2003, after the initial secret negotiations between the Alvaro Uribe government and the AUC leaders, transitional justice was not contemplated. These negotiations culminated in the Ralito Agreement of July 2003. While much of what was discussed then remains obscure, the document that was made public showed an agreement to demobilize and disarm the paramilitaries and to offer monetary reparations to victims. The agreement informed the Bill on Criminal Alternatives, which included generous terms of reincorporation for the paramilitary, but no provisions to guarantee victims’ rights to truth, justice, and reparations (such as restitution, compensation, indemnification, rehabilitation, symbolic reparations, and guarantees against repetition). After being criticized by the victims’ representatives, the European Union, and national and international nongovernmental organizations, the bill was amended. The second period started with the passage of the Justice and Peace Law (Law 975 of 25 July 2005) designed to demobilize the paramilitaries and other illegally armed actors, and grant limited rights to the victims. While incorporating transitional justice elements like reparations in an effort to appease its critics, the law offered disproportionate benefits to the paramilitaries and incomplete rights to the victims. As such, nongovernmental organizations like the Comision ´ Colombiana de Juristas, supported by Human Rights Watch and the Inter-American Commission for Human Rights (IACHR), challenged the law’s constitutionality in the Constitutional Court, which upheld the victims’ full rights to justice, truth, reparations, and included victims’ active participation in the judicial process. The right to justice entailed the state’s duty to undertake an efficient investigation leading to the identification, capture, and punishment of those responsible for conflict-related crimes, to guarantee the victims’ access to reparation for the harm inflicted, and to adopt measures preventing the recurrence of such violations. The third period began in May 2006 when Law 975/2005 was turned into a transitional justice instrument by ten Constitutional Court decisions (C-370, C-127, C-319, C-400, C-426, C-455, C-476, C-575, C-719, and C-531, all adopted in 2006), which gave “claws to guarantee the victims’ rights” (Uprimny 2006). Even before these decisions, the law had ambitious goals: the search for peace; the prosecution of perpetrators of crimes against humanity; reparations for the victims granted through the National Commission for Reparations and Reconciliation (CNRR); and the reconstruction of historical memory by the Grupo Memoria Historica, part of the CNRR. But the Court, relying on its past ´ decisions and domestic and international legitimacy, enlarged provisions benefiting the victims and restricted illegal actors’ privileges. The Justice and Peace Law provided for more lenient (up to eight years of jail time) sanctions for those who fully confessed to their war crimes and crimes against humanity after having been demobilized and disarmed. Failure to fully confess and repetition of the offense warranted the imposition of the harsher sanctions provided by the Penal Code. International experts argue that the law is one of the few transitional justice laws in the world that complies with the general requirements of the German Constitutional Court’s “proportionality test” and the “Rule of Balancing” between the search for peace and justice. The ensuing transitional justice and the paramilitaries’ demobilization constitute a fundamental break with the Colombian tradition of appeasing illegal armed actors through blanket amnesties and outright impunity. Local nongovernmental organizations

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like Colectivo de Abogados-Jos´e Alvear Restrepo still contend that it is a law of impunity because of the leniency of alternative convictions of up to eight year jail time granted to perpetrators of crimes against humanity. While the law is generally accepted, critics point to difficulties with enforcement attributable to the still precarious investigative powers of the judiciary given the law’s emphasis on the (punitive) justice component.

Disarmament, Demobilizations, and Reinsertion The collective demobilization of most AUC leaders and 31,671 AUC paramilitary members in 2003–2006 represented a first step in decreasing terror and violence throughout the country. But the initial demobilization of paramilitaries directed by the Colombian government was improvised. The IACHR members who oversaw the process argued that, by wasting opportunities, the executive hindered the collection of evidence and information from paramilitary members about the crimes of un-demobilized units. Hence, most of the 29,000 demobilized paramilitaries walked free by concealing their involvement in criminal activities, which could not be documented from other sources. Amendments to law 906/2004 adopted in 2009 gave judges discretionary power to cancel prosecution for the demobilized. There are two notable reasons why so many former paramilitary soldiers were not prosecuted. First, those who walked free were those who did not confess to any human rights violations and for whom there was no evidence of criminal involvement. While they might have been responsible for human rights abuses, they were not the decisions makers or direct perpetrators of atrocities. Trade-offs between justice and peace were accepted, the more so for minor crimes or low-ranking perpetrators. Second, Colombia found it impossible to prosecute all perpetrators given their overwhelming number and its limited prosecutorial resources. As such, it adopted sentence reductions (inspired by German denazification) instead of clemency laws when the retributive goals of justice conflicted with the political objectives of the demobilization of non-defeated powerful illegal armed actors such as the paramilitaries. According to the government agency in charge of the reinsertion of ex-combatants, Alta Consejer´ıa para la Reinsercion ´ (ACR), disarmament included 18,051 weapons, 3 million rounds of ammunition, and 13,117 grenades. Although less than one weapon per demobilized was returned, disarmament has not been a priority, whereas the reinsertion of demobilized ex-combatants into society was hotly debated. To the 31,671 demobilized paramilitaries, the Ministry of Defense added another 19,553 former illegal actors (65 percent from the Fuerzas Armadas Revolucionarias de Colombia [FARC] guerrillas), who demobilized individually from 2005 to July 2009. Thus, the total fully demobilized ex-combatants reached 51,224. The process of demobilization and societal reinsertion is lengthy and its success hard to gauge. According to the ACR, 2,470 (7 percent) of the total 31,671 paramilitary were forced out of the reinsertion program for their continued involvement in criminal activities; 3,500 (9.5 percent) left the program voluntarily; and only 3,000 (9 percent) successfully completed the five-year program in July 2010. To date, 31,999 individuals (of which 22,269 are paramilitaries) are active participants in the ACR reinsertion program. National Police data indicates that 10 percent of the total 51,224 demobilized ex-combatants have been captured for continuing criminal activities. Reinsertion needs time to show fruitful outcomes.

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The death of 2,036 (4 percent) demobilized ex-combatants, mostly former paramilitaries, from 2001 to 2009 further undermined reinsertion, because most of these deaths resulted from assassinations. These assassinations constitute a threat for the demobilized, a challenge to any future peace process with the warring guerrillas (which in 1982 were subjected to extermination after a failed peace process), and a reminder of the fragility of the AUC demobilization in the midst of a conflict. The process of reintegration is well institutionalized and follows accepted international norms and oversight. But victims and the general public have criticized the vast state resources allocated to the reinsertion of perpetrators of atrocious crimes, when almost half of Colombia’s population and most victims are poor and receive less attention and resources than the demobilized. While the director of the reinsertion process has publicly acknowledged these problems, its perceived illegitimacy is detrimental to the peace process.

Prosecutions and Trials According to the government, the Attorney General/Fiscal´ıa should investigate 3,600 of the 31,670 demobilized paramilitaries either facing serious allegations or incriminated for their participation in crimes against humanity by their demobilized colleagues. In 2009, the Fiscal´ıa presented a report analyzing the implementation of the Justice and Peace Law during its first four years. Confirming the findings of the United Nations Refugee Agency (UNHRHC), the report showed that 65 percent (that is, 1,215) of the 1,867 depositions taken from demobilized paramilitaries by June 2009 were completed. These depositions revealed 27,000 crimes affecting 40,000 victims. To date, only one indictment has been prepared. Fourteen demobilized AUC leaders were extradited to the United States for their alleged involvement in drug-related crimes despite opposition from human rights advocates who claim that deportations will lead to a loss of truth for the victims. Still, depositions have allowed for the discovery of 2,000 graves and 2,439 bodies, of which 571 have been identified and returned to their families. Depositions have also uncovered evidence that enabled the initiation of 209 criminal investigations against politicians, mainly mayors, ex-mayors, and more than one-third of existing members of Congress (102) who financed or supported the paramilitary. The Parapol´ıtica scandal, which revealed the direct involvement of high-ranking politicians and public officials in financing and supporting the paramilitary, represented the largestever judicial investigation of ruling elites in the country’s history, because most of the accused belonged to parties that supported the Uribe government. As a result, almost a third of Congress members have lost political office until their legal situation is clarified and are currently in jail awaiting trial. Several of them have already been convicted. Depositions helped unveil another major scandal, the Falsos Positivos, which so far has led to the investigation of 140 army members and to the vetting of many high-ranking military officials by President Uribe. While a significant number of victims has had no access to the Justice and Peace process because of fear or direct intimidation by armed groups or rearmed paramilitaries or lack of resources to attend the hearings, surveys show that 59.4 percent of victims were included into protection programs and another 17 percent of them into government assistance programs. According to the Fiscal´ıa, 27,147 (10 percent) of registered victims have actively participated in the hearings since 2006. But the massive displacement of

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millions of innocent civilians is still not understood because demobilized ex-combatants have not yet disclosed the systematic practices that led to displacement. Justice results thus remain mitigated.

The Politics of Memory While the legal framework was designed to institutionalize the search for judicial truth, it also provided for a National Commission for Reparation and Reconciliation (CNRR), responsible for victims’ reparations. A CNRR group, the Grupo Memoria Historica ´ (GMH), documents the historical truth with the goal of reconstructing public memory and may sow the seeds for a future truth commission, an institution not excluded from the Justice and Peace framework. Since 2008, the GMH has produced many reports on some of the most atrocious massacres and human rights violations. The first report documented the AUC paramilitary’s use of extreme cruelty and terror tactics, such as dismembering live individuals in front of their families and friends, and showed its capacity to hide its crimes by turning rivers into graves, reducing bodies to pieces, and making people “disappear.” By revealing the links between paramilitary activities and drug trafficking, the report concluded that Trujillo was an ongoing tragedy and questioned the extensiveness and accomplishment of paramilitary demobilization. The second report documented the El Salado massacres, which involved 42 group massacres that lead to the assassination of 354 individuals. An entire town was stigmatized as guerrilla sympathizers, and 450 paramilitaries committed cruel murders that replicated Trujillo’s viciousness. Beyond the massacres and murders, the report revealed the claims of El Salado’s residents that the military ignored the strong paramilitary presence days before the massacre, and shared responsibility by confining residents in the town. The report attributed direct responsibility for the massacre to the Colombian state authorities. By doing so, the report was groundbreaking, as it was the first time a national agency condemned the state. In September 2009, the government delivered a public apology for those massacres. The Colombian media have also played an important role in reconstructing the truth. In particular, the weekly magazine Semana and the nongovernmental organization Fundacion ´ Ideas para la Paz (FIP) have developed the Web site Verdad Abierta, offering accurate information on the details of the Justice and Peace process and giving a voice to victims.

Reparations This process is just beginning. According to the CNRR Director Eduardo Pizarro, only 2,000 out of the 250,000 registered victims have received economic compensation. The CNRR’s latest report (as of this writing) claimed that another 10,000 victims – mainly women who suffered sexual violence and land mine survivors or their families – were to receive compensation by late 2009. These recent reparations include a budget of US$80 million. Some US$150,000 was set aside for compensating 18,000 other conflict victims in 2010. The reparations process, which is expected to end in 2019, is financed from the national budget and the CNRR fund, which also includes private donations from Colombia and abroad and proceedings from the sale of assets confiscated from the illegal armed actors.

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Reparations also involve land restitution. According to Verdad Abierta, 5,000 million hectares were forcefully taken in recent decades. Experts, public officials, and CNRR members have drafted several land restitution and protection programs, sponsored by the Canadian government and overseen by the International Center for Transitional Justice (ICTJ). Most proposals refer to the period from the 1970s to the early 1990s, when most land confiscation took place, and provide for 400,000 families, according to ´ the state Registry for Land Abandoned as a Result of Violence (Registro Unico de Predios y Territorios Abandonados por la Violencia, RUPTA). Proposals diverge when it comes to the size of returned land plots, the entity that should be in charge of land restitution, the provision for alternative dispute resolution mechanisms, and the system of resource generation for a more democratic access to land to prevent land reappropriation. While to date little land has been returned, the process could be supported by the fact that a plurality of social and governmental actors are involved and the Constitutional Court has already provided the standards that land restitution ought to respect. The contribution of the ICTJ and the Colombian think tank DeJusticia in the drafting of these proceedings should also help the land restitution process. On June 16, 2011, the Congress passed the Law 1448 on the Attention, Assistance and Integral Reparation of Victims of the Internal Armed Conflict, whose effects are yet to be seen at the time of this writing. Conclusion

Unlike in other countries, in Colombia, criminal justice has been key to demobilization. While in principle criminal justice is not suited for political ends because its outcomes are slow and uncertain compared to those of a truth commission, the incompleteness of the transition to peace and of the demobilization of paramilitary and other illegal armed actors may have justified the predominance of punitive justice over other forms of transitional justice. Although results are still ambiguous, both the dismantling of the AUC military structure and the important truths that have emerged so far within the transitional justice framework make the AUC paramilitary demobilization irreversible. The plans for land restitution also provide for some degree of moderate optimism on a central issue of Colombia’s conflict. Yet it remains an uncertain transition in the midst of a prolonged armed conflict. Elvira Maria Restrepo Cross-references: Armed Conflict; Conflict (Ongoing) and Transitional Justice; Crimes against Humanity; Criminal Justice; Media and Transitional Justice; Prosecutions; Reintegration of Former Combatants; Reparations; Right to Justice; Right to Truth; Truth and Reconciliation Commission on the Killing of Hostages in the Justice Palace in 1985. Further Readings Fundacion ´ Ideas para la Paz and Revista Semana Web site. Verdad Abierta [Open Truth]. Available at: http://www.verdadabierta.com (accessed October 30, 2009). http://www.reintegracion.gov.co/Es/prensa/noticias/Documents/febrero11/factINGagosto11.pdf. http://www.fiscalia.gov.co:8080/justiciapaz/Index.htm.

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Ib´anez, Ana Maria. 2008. El Desplazamiento Forzoso en Colombia: un camino sin retorno hacia la ˜ pobreza [Forced Displacement in Colombia: A One Way Street toward Poverty]. Bogot´a: Ediciones Uniandes. Justice and Peace Law (Law 975/2005). Diario Oficial no. 45.980, 25 July 2005. Orozco, I. 2009. Justicia Transicional en Tiempos del Deber de Memoria [Transitional Justice in Times of a Duty of Memory]. Bogot´a: Editorial Temis. Rettberg, Angelika. 2011. Reparacion ´ en Colombia. Un estudio de las necesidades y las expectativas de las v´ıctimas del conflicto armado [Reparations in Colombia. A Study of the Victims of the Armed Conflict Necessities and Expectations]. In La desmovilizaci´on de los paramilitares en Colombia, Entre el escepticismo y la esperanza [The Demobilization of the Colombian Paramilitaries. Skepticism and Hope]. Eds. Elvira M. Restrepo and B. Bagley. Bogot´a: Ediciones Uniandes. Reyes, Alejandro. 2009. Guerreros y Campesinos. El despojo de la tierra en Colombia [Warriors and Peasants. The Despoil of land in Colombia]. Bogot´a: Grupo Editorial Norma. Uprimny, R. ed. 2006. ¿Justicia transicional sin transici´on? Verdad, justicia y reparaci´on para Colombia [Transitional Justice without a Transition? Truth, Justice and Reparation in Colombia]. Bogot´a: DeJusticia.

Congo, Democratic Republic of the For decades, the Democratic Republic of the Congo (DRC) has been wracked by armed power struggles, international interference, and continued atrocities. Parts of the country are still affected by mass violence, preventing a transition from human rights abuses and conflicts toward peace, rule of law, and respect for human rights. Attempts at confronting the past and at using justice mechanisms to stem current violence have been limited. That said, the first case ever tried by the International Criminal Court (ICC; see separate entry) resulted from a 2004 referral for assistance in investigating and prosecuting atrocities committed in the DRC. The Repressive Past

The years of political turmoil that followed Congolese independence from Belgium in 1960 paved the way for the 1965 coup and three decades of autocratic and corrupt rule under President Mobutu Sese Seko. That period saw the gradual decay of all state institutions and ultimately state collapse, accelerated in 1989 by the loss of support from key Western allies as the Cold War ended. The weakening of Mobutu’s regime encouraged the emergence of opposition movements, forcing Mobutu to propose in 1991–1992 a plan to move toward a multiparty democratic system. The move failed and by the mid-1990s, a rebel movement led by Laurent Kabila, a longtime leftist opponent of Mobutu, emerged. Kabila’s Alliance of Democratic Forces for the Liberation of Congo (AFDL) launched an insurgency to topple Mobutu. A “war of liberation” followed in 1996–1997 when a regional alliance, spearheaded by Rwanda and Uganda, sent thousands of soldiers to support the AFDL. Rwandan forces accompanying the AFDL fighters pursued remnants of the army and militia that had perpetrated the 1994 Rwandan genocide, killing thousands of civilians, mostly Hutu refugees and local Congolese, in the crossfire (see entry on Rwanda). Hutu extremist commanders who survived the chase later formed the Democratic Forces for the Liberation of Rwanda (FDLR). Confronted by a weak opposition, the AFDL quickly gained control of the DRC. In May 1997, Kabila became the DRC president, while Mobutu fled the country and died in 2007, in Morocco.