Washington and Lee Law professor Mark Drumbl recently traveled to Colombia with the organization, Lawyers without Borders. Professor Drumbl shares his account of his visit below.
At the invitation of a not-for-profit group called Lawyers Without Borders, I spent several days in Bogotá, Colombia, in mid-February. They are engaged in important work that explores questions of transitional justice, punishment, and reconciliation in Colombia.
I shared my experiences in other countries with regard to accountability for massive human rights abuses, including notably mechanisms that operate outside of formal criminal trials. I examined the usefulness of such mechanisms in my first book, Atrocity, Punishment, and International Law. I knew very little about Colombia so this was a huge learning experience for me.
Colombia has suffered multiple decades of internal armed conflict. The conflict, broadly speaking, occurred between the Colombia state and associated paramilitaries, on the one hand, and non-state insurgents, notably the FARC (Fuerzas Armadas Revolucionarias de Colombia or Revolutionary Armed Forces of Colombia) and the ELN (Ejército de Liberación Nacional or National Liberation Army), on the other. Both sides to the conflict have committed grave violations of human rights, war crimes, and crimes that could qualify as crimes against humanity.
The FARC and the government of Colombia are currently in peace negotiations in La Havana, Cuba. The ELN and the government are not part of these negotiations. The FARC has announced a cease-fire and has been weakened tremendously.
The FARC began as a social liberation movement fueled by goals of land redistribution to the poorest segments of Colombian society. Accordingly, it has political roots. At the apex of its power controlled significant swaths of Colombia territory. While ostensibly beginning as a political organization, and still retaining some elements of a well-intended ideology, the FARC membership and methods however became increasingly terroristic and motivated by extortion, drug running, sadism, and kidnapping Colombians and foreigners for ransom.
The government of Colombia, through the state and more grievously extremist right-wing paramilitary groups, also has committed human rights abuses. These include extrajudicial assassination of civilians. In some instances, the bodies of murdered civilians would be deceitfully dressed up in guerrilla uniforms so as to indicate that the murdered had been insurgents. These ‘false positives’ inhibited any reparation claim and also ostracized the family of the slain.
The International Criminal Court is conducting preliminary examinations into the Colombian situation. As a result of this, Colombia is getting a fair bit of international attention. The state in an affirmation of positive complementarity has passed a number of pieces of legislation to encourage justice and reconciliation. The Colombia courts have been active as well. Civil society is very rich and engaged. Because of civil society actions other international actors, such as the Inter-American Court of Human Rights, have entered the conversation as well.
Major questions facing Colombia today are:
- Reintegration of FARC fighters convicted and serving jail time and possibilities of restorative justice within prison; amnesties for those not yet in custody.
- Accountability for state-sponsored abuses and stopping paramilitary violence.
- Some form of truth commission to explore the roots of the violence and suggest a greater political inclusiveness and equitable distribution of the benefits and burdens of society.
- Managing these issues within a process of peace negotiations that map onto a sense in certain communities that the conflict continues owing to the continued paramilitary attacks.
- Recognizing that Colombia has made huge strides forward over the past several years, and how to continue that momentum.
I met with a series of human rights lawyers at their offices in Bogota. I gave a talk about restorative justice as a potential methodology to help transition societies from violence to a more stable place. Afterwards there was a question and answer session.
On another day we flew to Bucamaranga. This is a city in the north, in the direction of the Venezuelan border. There we met with about 10 families of people (along with their lawyers) that had been murdered by state sponsored paramilitaries and their lawyers. In the afternoon I participated in a discussion with a group of judges, prosecutors, professors, activists, and international officials at the law school in Bucamaranga. Then the group (about 30 people) had a very intense conversation. Things are quite polarized in particular about what to do about the state crimes. The victims see those as part of a general plan of persecution while others see these crimes as aberrations that happen in the war against insurgents.
Lawyers without Borders together with the main law school in Bogota, the University of the Andes, hosted a conference about non-penal sanctions in the accountability process in Colombia. The auditorium was packed and there were many great speakers from all segments of society and the government. I spoke on the last panel, on questions of what it takes for an amnesty to be legal under international law, the definition of crimes against humanity and applicability to non-state actor groups with political missions, state responsibility, and the limits of law in transitional contexts.
