| Sep 5, 2024
Commentators often point to Colombia as a success story in terms of confronting the consequences of armed conflict through its extensive engagement with transitional justice efforts to secure peace and to prevent repetition. Yet despite the peace agreement in 2016 between the Colombian Revolutionary Armed Forces (FARC) and the government, Colombia still experiences armed conflict. According to the International Committee of the Red Cross (ICRC) there are eight ongoing conflicts in Colombia. Three of these involve the Colombian government fighting against the National Liberation Army (ELN), FARC dissident groups who rejected the peace agreement, and organised crime groups like the Gaitanist Self-Defence Forces of Colombia (AGC), also known as Clan del Golfo. The remaining five conflicts involve disputes among these different non-State armed groups. In the same report, the ICRC noted that in 2023 alone, over 145,000 civilians were displaced from their homes and 222 people disappeared.
Complexity and evolving actors, motives, and intensity have defined Colombia’s internal armed conflicts, which began in the 1960s. Rooted in struggles over social inequality and land access, the conflicts initially involved clashes between leftist guerrilla groups (FARC, ELN, etc.), the Colombian Armed Forces, and right-wing paramilitary groups (e.g, United Self-Defense Forces of Colombia (AUC)). In the 1970s and 1990s, drug trafficking intensified the conflicts, bringing in new actors like cartels, and providing a key funding source for guerrillas and paramilitaries. Control over drug trafficking routes became a major point of contention.
In the past 20 years, despite the demobilisation of major armed actors like FARC and AUC, violence has persisted. Dissident guerrilla groups (e.g. Estado Mayor Central, Segunda Marquetalia) and organised criminal gangs (e.g. AGC-Clan del Golfo) continue to fuel violence through control of illegal businesses like drug trafficking, illegal mining, and human smuggling, particularly in rural and border areas with Venezuela, Ecuador, and Panama. This complex range of actors has created a large victim population that itself presents a range of challenges in delivering redress for their harm.
Redressing the Colombian Armed Conflicts
Colombia has been called the “laboratory” of transitional justice. It benefits from strong local activism and international engagement to pursue ambitious efforts to tackle the widespread and systemic consequences of war. Colombia also has one of the biggest ongoing reparations programmes. Since 2011, the government’s Victims’ Unit has operated a reparation programme to deal with a broad range of victims of the different conflicts in Colombia, including violence by State and non-State actors that amounts to a serious breach of international humanitarian law or a gross violation of international human rights. Offenses range from extrajudicial killings and disappearances to sexual violence, use of child soldiers, torture, and forced displacement. Victims from January 1985 and after are eligible for reparations, whether as individuals or as a collective group or community.
Given the broad scope of eligibility for reparations, as well as the ongoing violence, it is no surprise that over 9,758,000 individuals have applied to be recognised as victims. This reflects one in five Colombians. As a Colombian civil society actor said to one of the authors, “It is very difficult to repair a victim when you have another victimisation next month. How do you close the tap of the reparations then?” Since the 2016 peace agreement, an average of nearly 10,000 new names have been added per month to the victim list for reparations.
Despite over 1 million victims benefitting from reparations between 2011 and 2022, it will take decades for all victims to receive reparations. The 2022 report of the Colombian Truth Commission made more than a thousand recommendations to improve the delivery of reparations, noting the “slow” realisation of victims’ rights that, due to underfunding, would not deliver redress within a “reasonable time.” In August 2024, a report indicated that the last two years have seen an increase in victims receiving reparations, with 330,000 victims compensated and a further 44 collective groups provided with $5.5 million in communal investment.
Reparations in Colombia: The Victims’ Law
The reparations system for victims of the conflict in Colombia is a complex framework that includes multiple administrative, judicial, and extrajudicial mechanisms designed to address the wide range of damages caused by six decades of armed violence. Within the standard judicial system, known as ordinary jurisdiction, victims can seek reparations through criminal proceedings, civil tort cases, and State liability actions, as well as through judicial orders from international bodies like the Inter-American Court of Human Rights. Although these mechanisms aim to comprehensively guarantee victims’ fundamental right to reparation and go beyond mere financial compensation, they have been criticised for their lengthy procedures and limited victim participation.
Given these limitations, the Colombian State enacted the Victims and Land Restitution Law (Law 1448) in 2011. It offers administrative measures that ensure reparation, assistance, and humanitarian aid to victims of armed conflict. The law addresses the needs of both individual and collective victims who suffered harms related to armed conflict that were committed after January 1, 1985. It recognises victims of both non-State armed groups and State agents. As a transformative tool of transitional justice, the Victims’ Law empowers victims to reclaim their dignity and restore their rights as citizens. Additionally, it embraces the principle of intersectionality, ensuring that reparation measures consider the unique characteristics of each victim, such as ethnicity, age, gender, sexual orientation, or disability.
The Victims’ Law provides a comprehensive framework for addressing the harms caused by the armed conflict. This framework includes public-facing reparation measures like memorials, public acts of forgiveness, exemption from military service, and the Centre for Historical Memory. It also encompasses rehabilitation initiatives such as the Comprehensive Psychosocial and Health Care Programme for Victims (PAPSIVI) and the Strategy for Emotional Group Recovery (EREG). The law includes restitution measures, such as land restitution, housing programmes, technical training for victims, and relocation efforts. Additionally, it provides for financial compensation through the Victims Unit and ensures guarantees of non-repetition. Reparations under the Victims’ Law can be individual or collective, with collective measures specifically aimed at ethnic groups, peasant communities, and social movements that experienced collective harm during the conflict.
While the Victims’ Law is recognised as an ambitious and comprehensive effort to secure victims’ rights to reparation, it has faced significant practical challenges. By 2023, only thirteen percent of the victims registered with the Victims Unit had received compensation, largely due to burdensome bureaucratic processes that delayed access to reparation measures. Additionally, in 2011, Colombia estimated the total number of victim beneficiaries at approximately one million people. By July 2024, however, over 9 million people were registered as victims by the Victims’ Unit, with about 7.6 million eligible for the reparations programme. Dejusticia pointed out that the high number of registered victims is attributed to ongoing violence in the country and the broadening of the definition of “victim” by Constitutional Court rulings. Notwithstanding, the budget for the reparations programme has not been adjusted to meet the growing demands, resulting in insufficient funds to fully support the reparations and assistance policies.
Another significant challenge within the Victims Law’s reparations programme concerns addressing the needs of victims of sexual violence. Although the law has been innovative in including these victims, which includes children born of rape (art. 181), and it has developed specific health programmes like PAPSIVI to address sexual violence harms, there are still notable limitations. A report on Colombia’s reparation policy for victims of sexual violence highlights that the country lacks specific tools to adequately analyse funding for these reparations. Additionally, the current programme’s design and planning fail to account for key factors, such as underreporting of sexual violence cases and the difficulties victims face in coming forward. Furthermore, the budget does not allow for a clear allocation of resources for sexual violence reparations, frustrating accurate assessments of costs and adjustments to the programme.
Reparations in the 2016 Peace Agreement
The 2016 Peace Agreement between the Colombian government and the FARC created the Comprehensive System of Truth, Justice, Reparation, and Non-Repetition. The Comprehensive System is a victim-centred system that provides restorative and transformative measures to those most affected by the conflict. This includes the Special Jurisdiction for Peace (JEP), the Truth Commission, and the Search Unit for Missing Persons, each with its own reparative components. For instance, in the JEP, those perpetrators who provide full truth and accept criminal responsibility face special sanctions that include reparative work and activities (TOAR). TOAR are collective reparation measures that include activities like building or repairing infrastructure, demining, crop substitution, and providing education, among others. These measures are designed to support victims and foster restoration and reconciliation between perpetrators and communities.
The Truth Commission focused its reparation efforts on restoring the dignity of victims by recognising them as citizens and key agents in the country’s transformation. Its final report included 52 recommendations for victim reparations, emphasising symbolic and material measures, particularly for ethnic groups, women, LGBTIQ+ people, exiled, refugee, and displaced communities.
The reparation efforts of the Search Unit for Missing Persons focus on finding individuals who disappeared before December 1, 2016, during the armed conflict. Its mission is to alleviate the suffering of families by providing information about the whereabouts of their loved ones. The Search Unit’s work contributes to truth-seeking, preserving memory, and restoring the dignity of the victims, which are essential elements in comprehensive reparations. Notably, the Search Unit directly involves victims’ families in the search process and offers them psychosocial support and counselling.
Another key component of the Peace Agreement, in addition to the Comprehensive System, is the Development Programmes with Territorial Approach (PDET). These programmes serve as territorial planning tools aimed at implementing rural reform measures over a ten-year period in the areas most affected by the armed conflict. The PDETs aim to address poverty and exclusion in rural communities while repairing the collective damage caused by violence. To prevent overlap, PDETs must be articulated with the reparation programmes established by the Victims’ Law and the Comprehensive System. Although articulation measures are not yet fully defined, grassroots organisations have suggested integrating the JEP’s reparation measures into PDETs collective reparation projects, applying the Truth Commission’s social dialogue methodologies to the design of the PDET, and aligning PDETs with the Collective Reparation Plans developed by the Victims Unit. This approach is intended to foster a long-term restorative process for communities of rural victims.
Victims’ Law Reform
In May 2024, Congress approved a reform to the Victims’ Law proposed by the Ombudsman’s Office, pending presidential approval. This reform addresses challenges in the Victims’ Law by focusing on “durable solutions,” that is, structural, long-term actions to rebuild victims’ lives and address socio-economic barriers like poverty. Key aspects of the reform include offering compensation to individuals who cannot return to or receive restitution for rural land. This compensation consists of providing urban housing and support for productive projects to help them rebuild their lives. It also expands the definition of victims to include those in exile or who suffered forcible cross-border displacement and forced confinement. The reform also creates a Funding Commission tasked with identifying new sources of funding for reparations. However, the specific steps to ensure sustainable funding for these reparations are still undefined.
Finally, the reform enhances coordination between the Victims Unit and the Comprehensive System, allowing victims accredited before the JEP and the Search Unit for Missing Persons to be included in the Victims Unit’s administrative reparations programme. This addresses the issue of JEP-accredited victims who did not qualify for reparations through the Victims Unit. These victims will now have a new option for reparations, independent from the collective measures ordered by the JEP. While this broadening of benefits to new categories of victims is to be welcomed, given the serious nature of their harm, at what point will victims receive reparations in reality? Critically the expansion to a long-term focus on structural harms risks diluting the symbolic acknowledgement and legal value of reparations in remedying wrongdoing, rather than social assistance and development in the midst of ongoing conflict.
Conclusion
Most reparation programmes are established at the end of hostilities. Colombia sits as an outlier when it comes to reparations due to the fact that the scheme outlined in this post was established in the midst of ongoing conflict. There is an increasing trend to provide some form of redress to civilians affected by armed conflict during hostilities, but this is often limited due to insecurity, concerns over aiding the enemy, and verification, to name a few challenges.
In human rights law, reparations to remedy past harms are very well-established, with those responsible carrying out investigations and preventing the repetition of violations through reform of their governance, institutions, and/or cultures of practice. The danger of compensation for civilian harm during conflict is that it risks compensation being seen as blood money or a revolving door of violations, without changing the dynamic of the violence that harms civilians.
The 2016 Peace Agreement created a new architecture to deal with the complex harms raised by decades of violence. Yet it remains unclear how the various mechanisms (Victims’ Law, Comprehensive System and PDET) will be coordinated. The reform of the Victims’ Law mandates this coordination, but there is no detailed roadmap for its implementation. This lack of clarity could complicate and prolong the process for victims, who might have to navigate multiple institutions, repeatedly recount their stories, and deal with bureaucratic delays and finger-pointing among agencies and mechanisms in the face of ongoing violence.
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Daniela Suárez Vargas holds a PhD in Law from Queen’s University Belfast, where she was PhD scholar of the AHRC Northern Bridge Consortium.
Luke Moffett is Professor of Human Rights and International Humanitarian Law at Queen’s University Belfast.
Photo credit: Storicus