Another Failed Attempt at Justice or the Greatest Hope Yet for Reconciliation: What Can Sri Lanka Learn from Colombia’s New Victim’s Law?

At first glance, Colombia and Sri Lanka have little in common aside from a brutal history of violence. Nevertheless, the few but important similarities mean that by studying how the other moves towards national reconciliation and the reestablishment of Government legitimacy could prove to be beneficial. A case in point is the revolutionary new Victim’s Law approved by the Colombian Congress this past June that just might prove be an interesting case study for Sri Lanka.

Civil War in the Andes

Colombia is a vast country broken apart by soaring mountain ranges, sprawling grasslands and the depths of the Amazon jungle. For the past four decades a vicious war between peasant land movements, paramilitary armies, government forces and armed gangs have plagued the countryside leaving hundreds of thousands dead and millions displaced. Fueled by drug money, Colombia’s war morphed overtime into a snake pit of drug lords, organized crime, and the markedly non-political remnants of once powerful movements.

In 2002, newly elected President Alvaro Uribe rejected previous attempts at peace negotiations and launched a relentless military campaign against the strongest of the guerilla groups, the Fuerzas Armadas Revolucionarias de Colombia (FARC). At the same time, he extended a hand to the largest paramilitary army—the Autodefensas Unidas de Colombia (AUC)—and made a deal that resulted in the group’s eventual disbandment and disarmament.[i]

Wildly popular until the day he left office, President Uribe successfully drove the FARC further into the jungle and gave Colombians a new lease on life. News of bombs exploding came less frequently and Colombians themselves were much less likely to be kidnapped or killed. Bogota was no longer a city synonymous with death, but rather began popping up on lists of up-and-coming places to live.

The Transition from War to Peace

Nevertheless, this military success came at a cost. President Uribe’s tenure was riddled with scandals engulfing the very highest levels of office. Words such as parapolítica and falsos positivos had to be invented just to be able to explain the allegations of what was occurring. Countless accusations of human right abuses by all sides involved as well as the almost daily murders of witnesses, activists, judges and politicians have so far gone uninvestigated. As a result, Colombia has one of the world’s highest impunity rates at around 96%.[ii]

To name only a few of the more notorious scandals, in 2010: 10% of members of Colombian’s House and Senate—a total of 33 people—were behind bars after being accused of supporting right-wing paramilitary groups; young men from the slums of Bogota were pulled from their homes, shot, and presented by the army as dead FARC members; and the Administrative Department of Security (DAS) was found to have been illegally spying on opposition members of Congress.

Last year’s Presidential polls saw the election of the hard-line former Minister of Defense, Juan Manuel Santos, who at the time promised to continue the policies of his predecessor. Nevertheless, President Santos has made a move so remarkable that it shows not only a substantial legal, but also a psychological break with the past. On May 26 of this year, the Colombian Congress passed the groundbreaking La Ley de Víctimas y de Restitución de Tierras or the Victim and Land Restitution Law (known popularly just as the Victim’s Law) that has the potential to improve the lives of millions across the country.

First, this bill will provide monetary restitution to victims of violence—or those that suffered from the acts of terrorists; illegally armed groups, and, most significantly, of Government armed forces. Second, the passage of this bill marked a significant rhetorical break from past policy by naming the war being waged in Colombia as an “internal armed conflict” as opposed to just a “terrorist threat”.

What does it mean to be a Victim in Colombia?

Colombia has more than 3 million IDPs and while the country boasts of some of the most advanced laws in the world regarding the rights of the displaced, implementation has so far been seriously lacking. Many of the displaced still have not returned to their communities for fear of continued violence and those who did return have only limited access to state services.

In support of the displaced and others who suffered during the armed conflict, the Victim’s Law was first proposed in 2007 as a way forward in national healing and reconciliation. However, the law stalled for years in the Colombian legislature as politicians argued relentlessly over the definition of a victim. President Uribe and his supporters championed the point of view that refused to include victims of Colombian Armed Forces, and rather only victims of terrorist activities, within the bill. This side originally received the majority of Congressional support, despite viable evidence of Armed Forces involvement in human rights violations. As a result of the disagreement, the bill was never passed.

However, in highly unexpected turn in October 2010, President Santos chose to reintroduce the bill in its current form, which will provide unprecedented compensation to victims of violence—including those that suffered at the hands of the armed forces. This time, the Colombian Congress passed the bill and made reparations available to all victims of the armed conflict, regardless of the perpetrator. Importantly, while former child soldiers are eligible to participate under the law, victims of criminal activity as well as demobilized ex-combatants are excluded.

Making Amends: Reparations and Restitution

In order to achieve transitional justice, this law aims to use the means of reparations, or the making of amends for the loss of a family member by paying money, to the more than 4 million people recognized as victims of the armed conflict. The maximum amount that can be allocated to each beneficiary is 20 million Colombian pesos or around UD$11,400, which is equivalent to about 40 months of minimum wage.[iii] Additionally, victims are entitled through the plan to an education allowance applicable to schooling from the elementary to high school levels as well as to healthcare.

Those eligible include victims whose fundamental rights were denied; those who suffered injury, emotional suffering, loss of liberty, forced recruitment, financial loss, or displacement; as well as those killed or disappeared as a result of the armed conflict. In order to preemptively combat fraudulent claims by non-victims, the Government has imposed harsh prison sentences of up to ten years for any false claims submitted.

Tackling one of Colombia’s most difficult challenges, the law also calls for the restitution or returning of titles to the displaced forced off their land. The total area under question is equal to about 6.6 million hectares. Significantly, the law places the burden of proof on the current landholders, who must prove that they acquired the land legally, as opposed to those displaced from the land. This nuanced approach demonstrates an understanding of both the trauma of displacement, during which many had to quickly flee leaving their documents behind, as well as knowledge of the psychological importance for victims of being able to their return home.

The restitution of land is expected to be an particularly difficult process to implement given the unnerving reports of criminal gangs and other types of armed groups purposefully amassing land in the Northern part of the country—an area where many of the displaced come from—through intimidation.  Nevertheless, this law is a significant first step towards the total resettlement and the normalization of life.

Another contentious issue regarding the law is the timeframe it covers. While some politicians wanted a shorter period beginning the 1990’s, the law as approved covers incidents that occurred as far back as 1985 and will be applicable for new cases that occur until 2021. The extension of the bill to cover incidents until 2021 is an impressive step that recognizes the fact that the conflict is not yet over and that new victims are created everyday. It is expected that the implementation of the bill will cost the Government of Colombia around US$20 billion dollars.

While human rights analysts have pointed out certain flaws in the law, such as the lack of special clauses addressing particularly vulnerable groups like Afro-Colombians and indigenous populations, there is a general hope that the implementation of the law will help to solidify the gains made in building a sustainable peace. As with past measures aimed at providing support to IDPs, the key will be in its implementation as well as the protection provided to witnesses coming forward to declare themselves as victims.

The Power of Rhetoric

Another change that resulted from the Victim’s Law was the sanctioning of the term “internal armed conflict” by President Santos to describe Colombia’s decades long orgy of violence. Those who disagree with this new classification argue that it will confer political legitimacy on the illegally armed groups terrorizing the country. On the other hand, for the millions of victims this switch signals an important break with the past and a long-awaited recognition of the realities in the country.

Initially, the labeling of the situation in Colombia as a “terrorist threat” placed the country closer to the frontlines of the US’s war on terror. The FARC’s prolific use of terrorist tactics and, more importantly, its deep involvement with the drug trade prompted the US to provide millions of dollars worth of military aid to the beleaguered country. Some skeptics believe that this aid would not have come if the US knew that it was involved in an “internal conflict” as opposed to a fight against a terrorist threat with a global reach.

Nevertheless, the United States Embassy has actually lauded the change in rhetoric. Additionally, to assuage those worried about conferring political legitimacy, the law directly recognizes that even though the State is providing compensation for victims of the Armed Forces, it can by no means be construed as recognition of criminal responsibility of the State or of the political legitimacy of the armed guerilla groups.

What does it mean to be a Victim in Sri Lanka?

As of yet, the Sri Lankan Government has not developed a comprehensive plan to compensate the hundreds of thousands displaced, killed, and disappeared during the civil war. The support provided so far has been only on an ad hoc basis regarding specific incidents. It is not clear whether or not the Government is interested in providing reparations to individuals and families. If the Government does decide, as it should, to provide restitution to these victims, the groundbreaking decision by the Colombian Government to give blanket compensation to all victims sets a high—albeit good—standard.

Given the sensitivities posed by the ethnic and political dimensions of the conflict, a single scheme that provides equal compensation for all—regardless of the perpetrator—could be the best way to show a palpable commitment to reconciliation and equality. Unfortunately, looking at the Government’s harsh response to allegations of human rights violations by the armed forces, the idea that the Government will admit that victims of State violence exist—let alone deserve restitution—seems unlikely if not impossible.

Outside of reparations, contentions over land rights in the North and East are a potential source of future discontent unless addressed quickly and efficiently.[iv] Given the common problems of loss of documentation, competing claims, and continued occupation, the Government will find itself needing to address this problem sooner rather than later. Keeping an eye on how the new law proceeds in Colombia could provide a good learning lab for Sri Lanka, particularly the clause that places the burden of proof on current landholders.

Looking towards the Future

Given the precarious security situation in Colombia, the passing of the Victim’s Law was accompanied by an ambitious security plan to combat drug-traffickers, newly emerging criminal gangs, and the remaining guerilla groups. Additionally, the most vulnerable areas of the country are receiving unprecedented levels of investments in social and economic infrastructure in an effort to build Government legitimacy and consolidate security gains through political engagement.

By promoting high-levels community involvement in the process and giving heavy focus to alternative livelihoods in order to ease the transition from reliance on illegal crops, the Government’s commitment to change is impressive, but will require both large sums of money as well as continued public support. Importantly, despite the undeniable gains in security, a least ten activists working on land issues as well as scores of witnesses and activists throughout the country have been killed this year alone.

While it is clear there is much left to be done, the steps made by President Santos have given hope to many anxiously waiting for Colombia to continue on the road to peace. While Sri Lanka is by no means Colombia, such South-to-South exchange of ideas and experiences between countries recovering from conflict could prove to be quite beneficial as people try to rebuild their lives and reconcile with the past.