When unspeakable crimes have been committed, justice often falls silent, too. That's why half a century after Colombia plunged into bloody conflict and oppression, the healing has barely begun. But a new law is trying to make victims of the violence whole in a country still fractured by brutal violence. In the process, it has revived an old debate over reparations, and how society should confront past injustices that still shape life today.
Colombia's so-called "victims' law" is the product of years of negotiation between the government and militia groups and is part of a broader reconciliation process that centers on punishment as well as restitution.* Many will be compelled to confess their crimes and, unlike many previous efforts at what's been dubbed restorative justice, survivors will be allowed to petition for compensation.
The modern idea of reparations as a human rights enforcement tool toes the line between accountability and mercy. In cases of genocide, ethnic cleansing or mass displacement--from Nazi Germany to Apartheid South Africa to Rwanda--there's always tension between the desire to correct the wrongs of the past and the need for society to move forward. Sometimes it means suppressing residual animosities--and having to live next door to your brothers' murderer, or the parents of the dissident you tortured.
One survivor's testimony from a recent hearing in Colombia highlights how challenging this kind of conciliatory justice can be:
People in the community said it would be dangerous. Even though these men are in jail, maybe they still have power.?
But when I entered the courtroom, I felt strengthened.?
I found a great satisfaction in facing those responsible for the displacement. For so many years, I had wanted to ask them questions. I couldn't understand how someone could do so much evil. I wanted to ask how they could be capable of causing so much harm to a human being who's a person just like them.?
A backgrounder by the advocacy group Redress, explains how Colombia's law will work:
The law contains two main parts, the first refers to the judicial process and the conditions under which the members of illegal armed groups (either paramilitary of guerrilla) can benefit from an alternative punishment. That is among others to fully confess their crimes, depose their weapons, enter into a peace agreement, and stop their interference in public affairs, release the people they have kidnapped, contribute to finding the victims of forced disappearance.
The second part of the law refers to the rights of the victims to truth, justice and reparation.
For the first time in Colombia's history victims came to the center of the attention as it was understood that they were they hinge between justice and peace. Beneficiaries will only be entitled to an alternative punishment if, and only if, they confessed all their crimes, were subject to a criminal procedure by independent prosecutors and judges and, most important of all, if they repaired the victims of their atrocities.
This model of restorative justice parallels similar systems in other countries devastated by conflict. But it takes an unprecedented, perhaps precarious, step toward both symbolic and material recompense.
New debates in human rights law have in fact broadened the concept of restorative justice, popularized during South Africa's transition from Apartheid. There have recently been movements for reparations for descendants of enslaved Africans in America, and for the so-called "climate debt"--the damages created by global warming--that is owed by rich industrialized nations to indigenous peoples and other poor communities in the Global South.
Through its reparations system, the Colombian government pledges to offset survivors' losses through monetary compensation, land redistribution, and other restorative measures. The core of the system is not retribution but repair.
According to Amnesty International, the administration of President Santos has suggested it will take "a less hostile posture towards human rights defenders" than its predecessor. One recent legislative breakthrough was the inclusion of victims of state violence, not just violence by other armed groups.
That doesn't mean all will go as planned, especially in light of the fact that Colombia is still facing internal violence and the fallout of the drug war. No one is sure the state has enough compensation money or the administrative capacity to handle the process. Rights groups continue to denounce Colombia's record of violence against labor organizers, especially as the country prepares to seal a controversial free-trade deal with the U.S.
And the culpability doesn't lie just within Colombia's government, since the warfare has been underwritten by the Pentagon's military support over the years.
Local human rights activists continue to seek redress in the International Criminal Court for the worst human rights violators, who killed with impunity under the regime of President Alvaro Uribe. The United Nations estimates that in the past three decades alone, the Colombian government and paramilitary groups have caused 16,000 forced disappearances. Several million are estimated to have been displaced from their land.
The arena of international justice has its own blind spots, of course. The slow pace of litigation--and the question of the social impact of historical memory in judging long-past crimes (as in Cambodia's ongoing tribunal process for atrocities committed under Pol Pot)--may breed endless frustration. And the International Criminal Court has been criticized by some African leaders who see it as an arm of a neocolonial political order--one that tends to disproportionately target African states, as opposed to aggressors in the West, chief among them the Bush administration.
On the other hand, when states are left to manage a post-conflict justice process on their own, civil society faces the danger of lopsided "victor's justice," meted out in retribution against agents of a toppled regime.
The greatest challenge in many cases is simply that they fail to deliver collective redress for collective suffering, due to gaps between the goal of reconciliation and the depth of material and legal resources that are needed to achieve it.
The perils of incomplete justice came to the fore in the Rwanda post-conflict tribunal system. In a 2007 lecture on the Rwanda process, prosecutor Hassan Jarrow said that criminal prosecution, investigation and media exposure of crimes were "perhaps the easier part of the justice equilibrium."
"However, the victim seeks much more in terms of justice. In addition to the arrest and removal of genocidaires from the postgenocide environment, the victims seek the re-establishment of a sense of pre-genocide order in their lives," Jarrow explained, ticking off the long list of concrete things victims have lost and must have restored--property, health, a confidence in their safety within public and political space. "And most importantly, an environment that accepts their loss, sympathizes with the victims, reassures them that they are not and cannot be responsible for the criminal acts of others."
In an interview, Peter Van der Auweraert, head of the Land, Property and Reparations Division of the International Organization for Migration, which has assisted Colombian institutions on victims' reparations issues, said the new system incorporates lessons learned from past models. In cases like Rwanda's, he noted:
Even though the national courts have been in judgement, giving compensation to victims, in reality, because of the lack of funds available, both on the side of the international community and the side of the national government, victims have not received anything at all. So I think the victim-centered approach that Colombia is trying to achieve is quite unique. If the implementation is successful, I think it could become one of the leading models for transitional justice approaches elsewhere in the world.
That's a monumental challenge for a country still wracked by instability. But a society that has seen so much suffering might actually be extraordinarily equipped to envision a new form of justice.
*A previous version of this post failed to note that the new law is part of a broader reconciliation process.