Written by Kristin Bergtora Sandvik (PRIO), Julieta Lemaitre (Associate Professor, Universidad de los Andes Law School, Bogotá)
What are the challenges of responding to displacement as a problem of transitional justice? In the Colombian context, pervasive violent conflict coexists with constitutional democracy. In recent years, the legal framework for dealing with internal displacement has been altered by the 2011 Victims’ Law. Based on newly published work on Colombia, this blog post discusses the changing conditions for displaced women’s legal mobilization.
Imposing the rule of law in post-conflict situations has often been seen as a means of filling normative voids that both enable and result from conflict. Colombia offers a unique opportunity to reflect critically on how progressive legal frameworks — particularly those that formally and extensively incorporate international law — fare in practice.
By early 2014, Colombia had one of the world’s highest populations of internally displaced people (IDPs): 5.7 million. As of July 2014, more than 6.6 million Colombian citizens had registered as victims of armed conflict. Since 1964, Colombia has been engaged in a protracted civil conflict that has entailed the presence of both communist guerrillas and paramilitary death squads, as well as the devastating effects of counterinsurgency operations (undertaken with U.S. support) and the militarization of the so-called war on drugs. The conflict, waged mostly in the rural areas, has created a massive forced migration from rural to urban areas, where IDPs join the ranks of the urban poor. Large-scale humanitarian crises typically involve weakened or fragile states, which rely on the humanitarian apparatus of the UN and international nongovernmental organizations (NGOs) to assess and address the crisis. This is not the case in Colombia, which is a constitutional democracy with a strong administrative state and a steadily growing economy. Colombia’s 1991 constitution included an expansive bill of rights with far-reaching legal protections for vulnerable groups, which were further developed by the Constitutional Court in the course of more than twenty years of progressive jurisprudence. In their struggle for social change, a plethora of grassroots organizations have made active use of the country’s strong legal mechanisms, as well as its thriving rights discourse.
Since the mid-2000s, the path-breaking legal and judicial processes that began in the late 1990s, which framed internal displacement as a humanitarian crisis, have gradually been replaced by a focus on transitional justice. Transitional justice efforts to “fill the rule of law vacuum” have been formally part of Colombian legislation since Law 975 of 2005, known as the Justice and Peace Law, introduced a limited transitional justice regime focused on bringing former paramilitaries to justice and instituting a limited truth-and-reconciliation process. With Law 1448 of 2011, which is known as the Victims’ Law, the country adopted a much more robust transitional justice process aimed at the restitution of land and the reparation of losses. Despite the political and legal emphasis on transition, however, armed violence and mass displacements have continued.
As the Victims’ Law began to shape the agendas and actions of women’s IDP organizations, it became clear that interesting things were happening at the interface between two coexisting regimes: (1) the legal framework addressing displacement as a humanitarian crisis, and (2) an emerging large-scale, victim-oriented transitional justice framework.
Separately, these regimes represent significant advances in the protection of civilians. The humanitarian crisis framework signified political and legal acknowledgment of the forced nature of migration, while the Victims’ Law acknowledged both the existence of armed conflict and the fact that its victims must be recognised and heard. In practice, the coexistence of the regimes creates both opportunities and challenges — specifically, by simultaneously empowering and disempowering grassroots actors.
Thematically, the relationship between displacement and transitional justice has only recently begun to receive sustained attention from practitioners, policymakers, and researchers. In December 2009, the UN revised its framework for durable solutions for IDPs, in order to incorporate transitional justice measures. And in 2012, an influential report undertaken by the Brookings Institution and the International Center for Transitional Justice noted that “transitional justice measures can be used to address the . . . . injustices associated with displacement”. We suggest that more focus must be given to the direct and indirect consequences of the application of transitional justice legal frameworks on the ground. In particular, what happens when transitional justice regimes coexist alongside other protection regimes designed for the same individuals — and when such coexisting regimes find themselves competing for resources and international attention?
Note: This entry is built on the following book chapter:
Sandvik, Kristin Bergtora & Lemaitre, Julieta (2015) ‘From IDPs to Victims in Colombia: A Bottom-Up Reading of Law in Post- Conflict Transitions’ in Saul, Matthew & Sweeney, James A. (eds.) International Law and Post-Conflict Reconstruction Policy, Routledge.