Forgotten Ghosts On How a Collective Reparation for the Unión Patriótica in Colombia could Be Conceptualised and Have an Impact on the Peace Process

Tatiana Fernández Maya Human Rights Centre University of Essex Supervisor Dr. Eadaoin O’Brien

This dissertation is submitted for the degree of Master of Arts Theory and Practice of Human Rights 2014-2015

18982 words 15 September 2015

To ma petite famille: Sara, Simón, Alejandra, Jeanette, Diego, Frida y Greco.

Acknowledgements

I would liketo thank COLFUTURO, Fundación para el Futuro de Colombia, for its support in financing my studies in Essex. My supervisor, Dr. Eadaoin O’Brien for her comments and remainders about the need of a solid structure. Dr. Sabine Michalowski for considering my initial idea about this work worthy enough to be written. Dr. Andrei Gómez-Suárez for his enlightening comments about genocide in relation with my topic.

Contents

Abbreviations ix

Prologue1

1 A Short History5 1.1 Rise and Fall of the Patriotic Union ...... 5 1.2 Case 11227 ...... 8 1.3 Reparative Actions so Far ...... 11

2 A Theory of Collective Reparations 13 2.1 What Reparations Are? ...... 13 2.2 Right to Remedy. The Content of Reparations ...... 15 2.3 Collective Harm, Collective Victim ...... 17 2.4 Collective Benefits. Some Examples from the IACtHR ...... 20

3 Contextualising the UP Victimhood 27 3.1 The Harm ...... 29 3.2 The Remedy ...... 32

4 How the UP’s Reparation Could Impact the Colombian Peace Process? 41

Conclusion 47

Bibliography 49

Abbreviations

CNMH National Centre of Historical Memory

CNRR National Commission of Reparations

FARC Revolutionary Armed Forces of Colombia

IACHR Inter-American Commission of Human Rights

IACtHR Inter-American Court of Human Rights

ICC International Court of Justice

ICTJ International Center of Transitional Justice

MRN Muerte a Revolucionarios del Nordeste

PNUD United Nations Development Programme

UP Unión Patriótica

Prologue

From the poet to my father: Álvaro, so much our peoples have suffered that very little we will have given them when we have given all.

Juvenal Herrera, the poet.

Once, there was a political party in Colombia called Unión Patriótica; now, after being almost exterminated, it is a blurred memory for most of Colombian society except for its victims, who continue remembering and waiting for justice. The Unión Patriótica (Patriotic Union, UP) arose from a peace agreement signed in 1984 between the Colombian government and the Revolutionary Armed Forces of Colombia FARC, the same interlocutors who are sitting today in Havana trying again to make peace. This movement was a left wing party with a political programme focused on expanding democratic participation and reforming the agricultural sector. Rapidly, it became the third political force in Colombia, representing a viable option for those disenchanted with the predominant bipartidism, it was however not seen in that way by the different forces that colluded in its annihilation. Even from its beginning, the UP experienced a violent persecution resulting in thousands of members assassinated or having suffered other kind of serious violations. There has not been any official strategy to stop the violations against members of the UP (what continue happening nowadays), or an updated investigation to clarify them. Thus, today, more than 20 years later, the vast majority of those crimes continue in the impunity. In terms of redress for the victims the situation is quite similar, only a few individual cases have received some form of reparation mainly through national courts and mostly in form of economical compensation for the individual harm caused, without addressing the possibility of a collective harm. It should be recognised that the situation for victims of human rights abuses in Colombia has improved in recent years with a renewed inclusion of victims in the national agenda and promulgation of some laws to assist them; even though, as 2 Prologue

I will argue later, the current strategies do not seem appropriate to respond to the specific characteristics of the UP case. Why is this relevant? Why is it important a reparation specifically designed for the victims of the Patriotic Union? The broad aim of this work is to respond to these questions considering two main hypothesis. My empirical hypothesis is that a reparation for the UP victims has, at the very least, symbolic implications over the current Colombian peace process, as long as it is a collective reparation; which leads to my second hypothesis. My theoretical hypothesis is that it is possible to classify a group of victims of violations of human rights as a collective victim, even when such a group has not cultural bonds. Beyond any legal or moral entitlement to receive reparation as any other victims of human rights violations, the current political context in Colombia with an ongoing peace process requires to implement measures to rectify past political repression and to create adequate conditions for exercising political opposition, now and in the near future. The physical elimination and social stigmatization of a political opposition group are weak foundations to sustain an eventual post-conflict [Cepeda and Girón, 2005a]. I will suggest that a collective reparation for UP victims which recognises not just the damage produced individually in every victim, but the harm suffered as a collective subject, could serve to foster trust between the parties on the negotiations table, an important element of any process of this nature. I claim that a reparation strategy centered in the concept of dignity would respond more efficiently to the harm caused to this collective. My intention is not to disregard the importance of reparation for individual victims, rather to examine the benefits that some collective measures could bring to Colombian society in general, and for the peace process in particular. Besides, by analysing the specific case of the Unión Patriótica, I can contribute to the study of collective reparations, which have been commonly limited to groups with some ethnic bonds, or conceived as measures with a broad spectrum of beneficiaries but without targeting any distinguishable harm. This work is composed of 4 chapters and a final conclusion. In the first chapter, Ioffer a brief account of the onset of the UP, its relevance in the political scenario during the late 80s and the violent response it obtained from radical sectors of the Colombian society. Also, I explain the origins and stages of the case presented by Reiniciar (an NGO representing the major group of UP victims) before the Inter-American Commission of Human Rights (IACHR) in order to establish the responsibility of the Colombian state for political genocide, a category which was not accepted by the IACHR, but which is a contested issue in the area of genocide studies. At the end of this chapter, I expose some important actions taken so far benefiting the UP victims, although not qualifying as reparations. Prologue 3

In the second chapter, I develop my theoretical hypothesis reaching a definition of collective reparation similarly constructed to the idea of individual reparation, which is my departing point. I identify reparations as having moral and political dimensions. From a political perspective, an important goal of reparations will be recognition, which refers to identify the condition of equality between individual human beings. The idea of recognition have an utmost importance in reparation processes since it allows victims to recover their conditions of dignity and equal entitlement of rights lost with the violation. This chapter also includes a review of the idea of an individual right to remedy, as it is enshrined in some human rights instruments, and the possibility of a similar collective right. In both cases, I have found that the current legal framework includes at most the procedural element of that right. To establish the contents of collective reparations, I examine some cases with such provisions granted by the IACtHR (Inter-American Court of Human Rights). The last two sections of the chapter rest upon the idea of collective reparations exposed by Friedrich Rosenfeld [Rosenfeld, 2010] as including three elements: collective victim, collective harm and collective benefits. I reconstruct his argument to find a relation of interdependence between the concepts of collective harm and collective victim, this relation leads me to a more “harm-oriented” definition of collective reparations. The third chapter is an application of the previous one; there, I identify all the elements of the definition of collective reparations in the study case of the UP. After distinguishing the collective harms suffered by the UP into two categories, stigmatisation and political repres- sion, I provide some possible measures to construct a collective reparation. Furthermore, I comment why, mainly due to the lack of the element of recognition, the Justice and Peace Law and the Victims and Land Restitution Law are not adequate to provide meaningful reparations. The last chapter is devoted to my empirical hypothesis. I relate the collective measures of reparation proposed in the third chapter, with some symbolic and material implications on the Colombian peace process. These implications are largely due to the fact that the Unión Patriótica born from the same parents who are now in the process of gestating another similar child: one of the objectives of the peace process is to provide the FARC with a political space after the end of the conflict; security for the lives of demobilised FARC members and guarantees for political exercise are minimum conditions for that. Reparation measures for the UP victims could help to materialise those conditions, creating a feeling of mutual trust. Even though, this work is the result of multiple readings and knowledges acquired during my studies, a good amount of my reflection comes from my direct personal experience with victims of the UP. Through this experience, I have realised that the victims feel neglected by the state not only because of the lack of responses about the crimes committed against their 4 Prologue loved ones, but also due to the absence of actions which help to improve their life conditions, conditions that were deteriorated, precisely, as a consequence of such crimes1. This feeling has created a deep mistrust in state institutions and also in the work of the IACHR, which is perceived as another politicised institution without real concern for the victims. Now, with a peace process under way, that mistrust has extended to the negotiation parties and to the process itself which they see as an augury of a well known history. Those feelings of mistrust and rejection could be overcome with a proper recognition, a reparation focused on the idea of re-affirming the dignity of victims to achieve their integration and to promote civic trust. For this group in particular, recovering civic trust would mean to recover the very sense of belonging to a society which for a long time has relegated them to be no more than forgotten ghosts.

1From the total of cases analysed by Roberto Romero, 84% of UP victims perished in selective killings, massacres or disappearances, are men [Romero, 2011, 169]; most of those men had families to support, so the women they left behind have had to assume all the burden of their homes. Orphan children have suffered a chronic lack of opportunities, and the women are overcharged of responsibilities. Now they, the widows, are who champion the struggle for justice in this case, giving it an interesting gender perspective. Chapter 1

A Short History

1.1 Rise and Fall of the Patriotic Union

One of he earliest attempts to make peace with the Colombian guerrilla movements was the peace process undertook by the government of president Belisario Betancur between 1982 and 19861. To contribute to the peace strategy, different political reforms were adopted during Betancur’s administration as the introduction of popular elections for majors and county executives, and the Law 35 of 1982 which provided amnesty for political offences and related crimes [Puyo, 2008]. That was a time for important democratic changes, but also the time for one of the most nefarious episodes of the Colombian violent history: the extermination of the political party Unión Patriótica. The Unión Patriótica (UP) was created as a result of La Uribe Agreement signed between the Colombian government and the FARC on 28 March 1984. Amongst other things, it established a bilateral ceasefire and the possibility for FARC members

to freely organise themselves politically, economically and socially [with the government’s compromise to] grant them, according to the constitution and laws, the relevant guarantees and incentives [Álvaro Villarraga, 2008, 200].

Around one year after La Uribe Agreement, the new political party was officially launched. Even though the political movement was thought as a strategy for progressive integration of FARC members into civil and political life [Puyo, 2008], it was a pluralistic movement, defined itself as ‘a broad front in which all social sectors, political parties and organizations interested in promoting the Process of Democratic Opening have a place’ [Álvaro Villarraga,

1The peace process was partially continued with the next government, under the presidency of Virgilio Barco with the final demobilisation in 1990 of the M-19 guerrilla, but with the rupture in 1987 of thetrucewith the FARC achieved by Betancur’s negotiations. 6 A Short History

2008, 203]; hence, the UP was made by some disarmed guerrilla fighters, members of the Communist Party, its main compenent, peasants, trade union members, academics, and other people attracted by the idea of introducing political reforms to allow more popular participation in decision-making processes, specially in rural areas, and to exercise political opposition. Since its foundation, the UP gained great popular support, particularly between peasants and workers in the most depressed areas, but also between some elites who hoped that it would help to a future demobilisation of guerrillas [Carroll, 1994-1995, 135]. However, other powerful groups, who felt their political interests undermined [CNMH, 2013, 135], and some sectors of the military not even accepting the Betancur’s peace process, did not received the UP with the same enthusiasm. To them, the UP was just another part of the FARC [CNMH, 2014, 131-132], a legal facade for the same illegal armed movement. This conception was decisive for the subsequent extermination campaign waged against the UP [Ortiz, 2008; Gómez-Suárez, 2015] whose members were assassinated by thousands and hundreds have been disappeared, tortured, incarcerated, forced to leave the country, or obliged to deny their political identity in order to survive [Gómez-Suárez, 2015; Cepeda and Girón, 2005a]. The UP participated in elections for the very first time in 1986. In that occasion they obtained 9 seats in Congress, 14 seats in departmental assemblies, 351 seats on town councils, and thanks to the 4.5% of the national vote won by UP presidential candidate Jaime Pardo, the party received 23 municipal mayors2 [CNMH, 2014, 134]. Later, in the regional elections of 1988, the UP obtained similar percentage results with 18 mayors being elected by popular vote. However, this electoral success had a high price:

[a]mong leaders elected to governing bodies in 1986 and 1988, the following were victims of violence [murdered]: 2 senators, 3 representatives to the house, 6 departmental deputies, 89 town councilmen, 2 former councilmen, 9 mayors, 1 former mayor, 3 candidates for town council and 3 candidates for mayor [IACHR, 1993, Chapter VII].

Besides, during the same period between both elections the UP ‘had lost 550 party members in massacres, killings, and disappearances’ [CNMH, 2014, 135], amongst them its presidential candidate Jaime Pardo, assassinated on 11 October 1987. These alarming figures however are not official3, the last enquiry was made in 1992 when, thanks to an individual demand, the Colombian Constitutional Court required the People’s Ombudsman an investigation into

2Until 1986 municipal mayors were appointed by Governors according to vote results in legislative or general elections, since 1988 they are elected by popular vote. 3The exact number of victims is still unknown, as usual in situations of widespread violence, victims do not denounce violations because they are too afraid or have been threatened. Reports from different sources present different data, for example in a joint report to the former UN Commission on Human Rights (E/CN.4/1995/111), 1.1 Rise and Fall of the Patriotic Union 7 the assassinations of the UP and members of Esperanza Paz y Libertad4. The final report showed a high level of impunity, from 717 UP cases of homicide analysed only 10 of them had firm sentence (6 acquittal, 4 conviction). The report also found that the peaks ofviolence occurred during times of electoral success. Although, the violence against UP members was highest during election periods and particularly intense against members of the party elected to office or prominent leaders, a great number of violations affected areas where the UP received greatest electoral support [IACHR, 1993]; there, the violence was neither limited to electoral moments nor restricted to elected leaders, common members of the party, their relatives or simple sympathisers were also targeted. That is for example the case of Segovia, a municipality located 200 Km northwest of Medellín. Both in 1986 and 1988 elections Segovia voted by majority for the UP, having two consecutive UP mayors: Álvaro Fernández and Rita Tobón. Its preference for the UP was cruelly punished [CNMH, 2013, 51] with the infamous Segovia massacre occurred on 11 November 1988 when the paramilitary group MRN, Muerte a Revolucionarios del Nordeste (Death to Northeastern Revolutionaries) entered the village, with a list of names, killing 46 people, including three children, and wounding over 50 others. 19 days after the massacre Álvaro Fernández was assassinated, his named was also on a list of targets of the MRN. Ten months after the massacre Rita Tobón’s brother was killed and she was forced to exile with her family. The political persecution suffered by the UP cannot be seen as an isolated case immerse in the logic of an armed conflict, violent persecution of political opponents has been widely used in Latin American history by powerful groups who see opponents and their message of political change as threatening [Green, 2015]. Furthermore, political murder has not been an option only for repressive governments fighting political instability, influential elites have also resorted to that practice; although, some degree of social or official consent is needed to assure impunity and to preserve elite interests. Identifying political messages as contrary to elite or hegemonic interests highly rely on a convergence of national and international circumstances, in the Colombian case the UP appears in an adverse moment: at national the special rapporteurs on torture and on extrajudicial executions wrote about more than 2000 members of the Patriotic Union being assassinated between 1985 and 1995 [available in http://goo.gl/wvMhDm]. The 1999 IACHR Country Report about Colombia, mentions more than 1500 [available in http://goo.gl/lwqKCB]. The book Unión Patriótica. Expedientes contra el olvido (Patriotic Union. Dossiers Against Oblivion) collects 1598 cases from 1984 to 1997 (see [Romero, 2011]). The collective case number 11227 presented before the IACHR contains a list of 1163 assassinations committed between 1985 and 1993 [see [IACHR, 1997]]. 4In 1991, after peace negotiations between the government of president César Gaviaria and the guerrilla group EPL- Popular Liberation Army, over 2000 fighters were demobilised and some of them formed the political party Esperanza, Paz y Libertad (Hope, Peace and Liberty). They were seen as traitors by remaining factions of the EPL and by the FARC, both groups are considered responsible for different massacres and killings of members of this group. 8 A Short History level paramilitaries were starting to grow and spread around rural areas; internationally, the doctrine of national security promoted by the US administration provoked a war against communism, justifying the dirty war against who was considered “internal enemy” [Gómez- Suárez, 2015]. The doctrine of the “internal enemy” was introduced to military forces in Latin-American countries during the Cold War as a way to stop advancement of communism in the region, what could jeopardise US geopolitical interests. The internal enemy is a political and military category defined within the perspective of state defence and national sovereignty [Ahumada, 2007, 69], it is recognised by its actions and ideology, considered a generator of national crisis and an adversary, whether armed of disarmed. Magda Ahumada includes in her book these words from a Colombian military manual still in use:

the [internal] enemy is made not only by those who take up the arms and remain in the areas of combat, but by sympathisers, supporters, and accomplices. All of them must be studied within the plans to be adopted, and more importantly, they must be working material for military intelligence 5 [Ahumada, 2007, 70].

Even with legal support of governments, it would have been difficult for members of the UP to escape this doctrine which is strongly internalised in most Colombian military members. On the other hand, this doctrine is perfectly adaptable to other stigmatising ideas developed by sectors of society opposed to the social changes proposed by the UP, who may have not seen its members as military adversaries, but certainly as threats to their economical or political interest in some regions. The UP elimination must be framed within a broad context to understand the multiplicity of perpetrators and the targeting process under which its members felt. These conditions make the UP members not just victims of the Colombian armed conflict caught on the crossfire, they were meticulously selected by their victimaries with the intention todiminish their political influence by eliminating the group.

1.2 Case 11227

As a response to the genocidal campaign, the UP publicly denuonced perpetrators and un- veiled different annihilation plans orquestrated by a variety of accomplices, mainly paramil- itary groups with some state support, but also members of the Colombian Army, drug

5Citation in Spanish: ‘El enemigo está integrado no solamente por quienes toman las armas y permanecen en las áreas de combate, sino por los simpatizantes, los encubridores y los auxiliadores. Todos deben ser objeto de estudio dentro de los planes que se adopten, y lo que es más importante, materia de trabajo para la inteligencia militar’. 1.2 Case 11227 9 traffickers, national elites or state representatives6. Through its International Affairs Offi- cer, the UP also tried to strengthen connections with different human rights NGO’s, other left-wing international parties, and international organisations as the IACHR and the United Nations; establishing what Andrei Gómez-Suárez calls a transnational network of resistance to genocide [Gómez-Suárez, 2015, Chapter 7]. Nevertheless, the violence did not stop and justice has not came yet. Due to this lack of solutions and the general climate of official indifference, in 1993 the Corporation for the Defence and Promotion of Human Rights, Reiniciar, and the Colombian Commission of Jurists jointly presented a petition against the Colombian state in the IACHR for the genocide against the UP, it was admitted under the case number 11227. In the admissibility report from 1997, the Commission observed that

the petitioners have alleged facts which tend to establish a pattern and practice of mass political killings and extreme persecution carried out against the mem- bership of the Patriotic Union in an attempt to eliminate the party physically and as a political force [IACHR, 1997, para. 26].

In spite of being declared admissible, and recognising ‘that the facts alleged by the petition- ers set forth a situation which shares many characteristics with the occurrence of genocide’ [IACHR, 1997, para. 25] the IACHR decided not to analyse the case as a genocide since it does not fall within the current definition of genocide in international7 law which only includes national, racial, ethnic, or religious groups as possible victims of genocide; this restriction exhibits one of the weaknesses of that definition which disregards other dimen- sions of genocidal processes. The definition of genocide falls short to describe patterns of destruction of human groups whose ties are not the ones included, but who also are subjected to similar systematic violence resulting in the same grave effects upon the social fabric of the group8. A similar approach has been taken in a few individual cases of UP members which have been judged nationally or internationally, the correspondent body has regarded the acts as

6There are at least five well documented extermination plans, namely, Operation Condor (1985), Baile Rojo (Red Dance, 1986), Plan Esmeralda (Emerald Plan, 1988), Coup de grâce (1992) and Retorno (Return, 1993). A short description of each is included in [Quiroga, 2003, 137-139]. 7Interesting to note that in 1993 the same institution, in its Second Report on the Situation on Human Rights in Colombia, evaluated the case of the Unión Patriótica under the section of genocide with these words: [e]ven though it is not the only serious case of genocide in Colombia, the Commission believes that the massive and systematic assassinations of the political group known as the Unión Patriótica, is undoubtedly the worst of all [IACHR, 1993, Chapter VII].

8A very insightful study of genocidal processes and its challenges is presented by Andrei Gómez-Suárez in [Gómez-Suárez, 2015]. 10 A Short History

crimes against humanity9. In the same line, in 2014 the Colombia’s Prosecutor General Office has declared 34 crimes against members of UP as crimes against humanity, this represents a small percentage of the total universe of cases but it may set a precedent in the work of the recently created Analysis and Context Unit which is the result of implementing recommendations on criminal investigation such as application of prioritization criteria, to develop more effective prosecution strategies in Colombia10. The case before the IACHR is the only one being studied as a collective case. After the declaration of admissibility, in 2000 the petitioners and the Colombian government signed an agreement with the purpose of seeking a friendly settlement on the matter, this included three main commitments [Reiniciar, 2006]:

- The Colombian government would establish a protection programme for UP victims and survivors, and would create sub-units in the Prosecutor General Office to find out the status of UP cases.

- Both parts would define a provisional common universe of victims in the caseby comparing sources.

- A working group would elaborate a methodological proposal with specific tasks with respect to truth, justice, reparation and protection.

After six years of work of the commission established under that agreement, only the first two points were partially achieved: the government did create a special protection programme for UP victims and Reiniciar did consolidate a list with more than 3000 assassinations from a total of 6000 violations against UP members; the other objectives were left on the paper. Most of the work of the working group was made during the administration of president Álvaro Uribe, at that time violence against opposition groups and social organisations in general and particularly against UP members rose. Between 2002 and 2006 Reiniciar registered ‘at least 136 homicides, 38 forced disappearances and 28 attacks on survivors and their families’ [Reiniciar, 2006]. Furthermore, during Uribe’s re-election campaign a defamatory TV spot was broadcast showing a testimony of an alleged former UP member declaring his regret for their past use of violence, and supporting president Uribe for keep fighting the UP. The petitioners then decided to broke the process notifying to theIACHR the official rupture of the friendly settlement stage on 27 June 2006. They also rejected to

9See for example Manuel Cepeda Vargas v. Colombia IACtHR, 26 May 2010, para. 2 [available in http://goo.gl/3ZRlkg]; sentence against ex-congressman Cesar Perez for the Segovia massacre, Supreme Court of Justice Colombia, 15 May 2013, para. 7 [available in http://goo.gl/L0zXBS]; sentence case Josué Giraldo, Colombian High Administrative Court, 26 June 2014, para. 9.14 [available in http://goo.gl/ddGrlN]. 10This was specially thought for the Justice and Peace Process in Colombia, aimed to demobilise paramili- taries with a significant reduction of sentences in exchange or full disclosure. See section 3.2. 1.3 Reparative Actions so Far 11 re-try that process after the Colombian government offers to do so during a public hearing in the IACHR on 27 March 201411. With a friendly settlement possibility missing, the case is still pending for the merits report before passing to the IACtHR for a final decision.

1.3 Reparative Actions so Far

As it has been said, there has not been any official reparation programme for the UP victims so far, and certainly there has not been any intention to repair them collectively; instead there have been some actions with reparative effects which are conceptually different from reparations. A reparation programme, as Pablo de Greiff explains, refers to measures intended to benefit victims directly; in contrast, reparative actions are those measures which may have reparative effects, and which may be very important (such as the punishment of perpetrators, or institutional reforms), but which do not distribute a direct benefit to victims themselves [de Greiff, 2006, 453]. At institutional level it is possible to identify different reparative actions. I already mentioned the decision of the Colombia’s Prosecutor General Office to declare some crimes against the UP as crimes against humanity, some others are waiting for the same declaration. Another relevant legal struggle won by the victims is the inclusion of political genocide as crime in the Colombian criminal law. The annihilation of the UP generated a debate within legal circles in Colombia; thanks to that, the Constitutional Court ordered to include total or partial destruction of political groups within the category of genocide (Law 599 of 2000). In spite of being an important measure to protect political groups in the future, in practice this change does not affect the UP victims or their victimaries since most of the crimes against UP members were committed before the law was modified. On 13 May 2013, almost 25 years after the Segovia Massacre Mr. César Pérez, an ex-congressman, was sentence to 30 years of prison for his complicity and determinant role in the massacre perpetrated by a the MRN12. Mr. Pérez was identified as having financed the massacre to eliminate a stronghold of support for the Unión Patriótica. Even though, the sentence only ordered individual compensation for families of the direct victims and survivors, it was received as a triumph by the whole UP victims who saw the sentence as a recognition of their allegations of complicity between paramilitaries, armed forces, and members of the government in the crimes committed against them. Another important sentence with a deep collective effect is the restoration of the legal status of the Unión Patriótica. Under Colombian electoral law, to maintain its legal status

11Video and audio records of this hearing are available in http://goo.gl/VMl31Z. 12See footnote9. 12 A Short History

every political party must gain a certain amount of votes in every electoral process; following this, in 2002 the UP lost its legality as a political party. On that occasion the UP did not pass the threshold because it did not present any candidate for legislative elections due to the acute persecution against the group. Recognising that fact, the Colombian Council of State in its sentence of 4 July 2013, decided to restore the legal status of the party expressing that:

[that] grave situation undoubtedly affected the freedom of the UP to continue acting as a political party [...] being impossible to participate in the same conditions as other political parties [Consejo de Estado, 2013].

It is worth to notice that this sentence did come from an individual legal action not from a state initiative, that is why it has a reparative effect but it does not constitute a reparation. Thanks to this sentence the UP is doing politics again, they participated in the last legislative elections in 2014, and again all UP candidates received death threats before the elections were held [Semana, 2013]. Chapter 2

A Theory of Collective Reparations

2.1 What Reparations Are?

The basic idea of reparation is quite simple: ‘if you blow up a house, then you build a house. If you blow up a bridge, then you build a bridge’1. The essence is to return what was unfairly taken or, when that is not possible, offering something in return. Legally, this idea was spelled out in the following principle:

reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed2.

In the context of human rights violations, which affect not only material goods but the very dignity of human beings, this principle is unfeasible [Roht-Arriaza, 2004, 158]: it is not possible to replace a son, a mother or any loved one lost; it is also impossible to erase the scars of a prolonged torture or to simply resume life in a new house after have been violently displaced from yours; it is materially impossible to undo a damage, but reparations may attenuate the suffering caused by that damage [Contreras, 2012, 48] or mitigate its consequences. The principle above cited establishes a legal obligation from states to make amends for any acts of grave injustice which entails state responsibility (by act or omission). ‘This is as much a political as a moral assertion’ [Brooks, 2003, 112], both dimensions of reparations can overlapped. Morally, ‘a reparation gives victims a recognition that the wrong suffered was in fact a wrong’ [Sharpe, 2007, 28], this vindicates victims in front of society and restores

1Cited at [Sharpe, 2007, 24]. 2Permanent Court of International Justice, Judgement of September 13, 1928 series A No. 17. Case concerning The Factory at Chorzów p. 47. 14 A Theory of Collective Reparations

their moral status. Besides, it challenges the moral superiority of the offender established by the commission of the crime [de Greiff, 2007, 161]; from a restorative perspective, this vindication becomes more valuable when it comes from an official source or from the very offender. Similarly, violations of fundamental rights create a situation of social inequity with some members of society not being treated as equals. Reparations may help to restore the political balance [Sharpe, 2007; de Greiff, 2006]by re-affirming the equality of every member of the community, particularly those whose rights have been disregarded. Considering reparations from a political perspective allows to pursue different goals beyond the narrow legal interpretation of reparations as mere redress for victims [de Greiff, 2006, 454-455], recognition is one of these goals. Recognition is a process by which individuals identify each other as equals. At institu- tional level this is translated on equal entitlement of rights, this equality of rights determines that those whose rights have been violated deserve special treatment, treatment that tends towards reestablishment of the conditions of equality [de Greiff, 2006, 460]. In this sense, a reparation for victims of violations of human rights requires some form of recognition. Situations of human rights abuses imply denial of rights to some members of society, often, victims are segregated or even blamed for their own fate [Roht-Arriaza, 2004, 160]. Reparations for those abuses entail acknowledgement of the violation as wrongful and recognition of victims as wrongfully treated. Where victims are recognised as fellow citizens, they are legitimised as rights holders, they can claim for their rights and benefit from the state’s obligation to provide redress. Furthermore, through recognition victims can regain some of the power seized by perpetrators [Sharpe, 2007, 29], and re-engage in civil life. Reparations for victims of human rights violations are normally managed through courts or specially designed schemes. Courts, national, regional, or even international, usually deal with individual claims and at lesser extent with collective cases including a relatively small number of victims. Nevertheless, in situations involving large numbers of victims, normally after internal conflicts or repressive states, national programmes of reparations, joint with other mechanisms of transitional justice, are the more resorted strategy. In these cases, individual reparations fail to capture the entirety of damages [Roht-Arriaza, 2004, 169]; thus, a collective reparation may be a more suitable approach. Independently of the way in which reparations are addressed, it is necessary to keep clear that reparations are primarily a response to specific harms [Roht-Arriaza, 2009, 172], as such they presuppose the existence of a victim and a harm, both elements should be properly recognised to distinguish reparations from victims assistance or distribution of 2.2 Right to Remedy. The Content of Reparations 15 public services (in the form of development programmes3). To be meaningful, morally and politically, reparations must give recognition to victims and be directed to the specific harm they have suffered.

2.2 Right to Remedy. The Content of Reparations

Reparations for breaches of international obligations have been traditionally considered under the rules of state responsibility [van Boven, 2008] which generate a duty for states to provide reparations for any attributable violation of international law; although, this principle was stated for inter-state relations by the judgement of the Chorzów Factory case4, it is accepted now that it also covers individuals [Rombouts, 2004, 19]. More recently, after the development of international human rights law and international humanitarian law, there is a tendency to acknowledge a right for victims to receive effective remedy for the harm they have suffered. This right is enshrined in different human rights instruments5, but normally understood in the procedural sense of the right ‘by which arguable claims of human rights violations are heard and decided [by any competent body]’ [Shelton, 2005, 8]. Despite of its broad recognition, the substantive content of this right, the actual measures of relief awarded to claimants [Starr, 2010, 477], is not clearly defined [de Greiff, 2007, 157-158]. The lack of consensus about the specific content of the right to remedy is not necessarily anegative feature, it allows governments and human rights institutions to be more flexible in the way they approach the matter; being possible to fit a variety of purposes, contexts and victims, as it is illustrated by the different approaches found in the jurisprudence on reparations at inter- national and regional levels [Starr, 2010; Evans, 2012]. In this regard, the Basic Principles

3Certainly, there is a close relationship between development and massive violations of human rights, particularly in cases of long-lasting armed conflict or oppressive regimes where violations of basic civil and political rights are concurrent with restrictions of economic, social and cultural rights (even though ‘no program to date labeled as reparations has attempted to redress such violations’ exclusively [Roht-Arriaza, 2009, 209]). Nevertheless, delivering reparations in the form of development programmes has some disadvantages, as Pablo de Greiff explains, it has very low reparative capacity, as the development measures are too inclusive (are not directed toward the victims) and they are normally focused on basic and urgent needs, which make the beneficiaries perceive them as a matter of right and not as a response to their situation asavictim [de Greiff, 2006, 470]; such generality blurs the harm that requires a reparation. 4See footnote2. 5Universal Declaration of Human Rights, article 8; International Covenant on Civil and Political Rights, article 2(3a); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 14; International Convention on the Elimination of All Forms of Racial Discrimination, article 6; European Convention on Human Rights article 13; American Convention on Human Rights, articles 25 and 63(1). 16 A Theory of Collective Reparations

and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (hereafter referred to as the Basic Principles) represent an effort to put together normative standards of existing legal obligations of states under international human rights law and international humanitarian law; though not binding, they constitute a framework to design reparation strategies for victims of crimes under both legal systems. Besides, they stress that, in order to promote justice states should provide victims with reparations ‘as appropriate and proportional to the gravity of the violation and the circumstances6’. Section IX of the Basic Principles unpacks the content of an effective reparation as having the following elements: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition7. In practical terms, it is difficult to grant reparations including all these elements; however, these should be taken into account in designing the most appropriate strategy for a particular context. The IACtHR has taken a holistic approach to reparations developing a progressive victim-oriented doctrine expressed in all reparations it awards, especially when dealing with gross violations of human rights, remarking the necessity to provide an integral reparation [Contreras, 2012] consisting of most of the elements aforementioned. That necessity was established by the very first judgement of the IACtHR, in Velásquez-Rodríguez v. Honduras case:

Reparation of harm brought about by the violation of an international obligation consists in full restitution (restitutio in integrum), which includes the restora- tion of the prior situation, the reparation of the consequences of the violation, and indemnification for patrimonial and non-patrimonial damages, including emotional harm8.

The IACtHR has been very innovative in the type of measures it orders to comply with its principle of integral reparation, giving to the individual right to remedy a more concrete content. Depending on the circumstances, these measures could include among others, reestablishment of victims’ status quo ante, economical compensation for every quantifiable harm, physical and psychological care, measures to restore the dignity of victims and their relatives as tributes or commemorative acts, disclosure of the truth from perpetrators, reforms of domestic legal systems, or obligation to investigate the facts and to apply sanctions against persons liable for violations. Despite the fact that some of these measures could have a

6See footnote7. 7 See articles 19-23 UN General Assembly Resolution 60/147, 16 December, 2005 [United Nations, 2005]. 8See IACtHR, Velásquez-Rodríguez v. Honduras, Reparations and Costs, Judgment of 21 July 1989, Series C No. 7, 26. 2.3 Collective Harm, Collective Victim 17 collective impact, they are intended to redress the individual harm produced by a violation, even in cases with more than one victim. The IACtHR has dealt with some cases in which it has recognised the collective character of certain victims, particularly in cases involving indigenous peoples, but it has not elaborated further on the meaning of collective reparations as such [Contreras, 2012, 46].

2.3 Collective Harm, Collective Victim

Collective reparations have been largely studied as a part of transitional justice mechanisms [de Greiff, 2012, 34], where states should design reparation programmes to deal with large numbers of victims arising from massive violations of human rights; in such contexts, reparations accompanied by other transitional justice strategies such as criminal prosecution, truth telling commissions or institutional reforms, coul help to achieve social reconciliation. Providing remedies for victims is deemed a matter of justice based more on moral grounds than on any enforceable obligation [Rombouts, 2004, 21-22]. International law is not clear about whether groups have a right to collective reparations, or whether groups have collective rights at all, some scholars argue about the existence of collective rights for specific groups [Kymlicka, 1995; Sanders, 1991] but the question is not settled; recognition of an individual right to receive remedies does not imply acceptance of an equivalent collective right. Human rights instruments do not explicitly deal with collective victims or collective reparations [Rosenfeld, 2010, 738], some conventions, however, including or not the indi- vidual right to remedy previously discussed, incorporate provisions to receive claims from collectives. For instance, article 2 of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights establishes a communications procedure which accepts complaints by or on behalf of individuals or groups of individuals claiming to be victims of a violation9. While this wording could amount to an implicit recognition of collective victims [Rosenfeld, 2010, 738], it does not mean a recognition of a collective right to remedy or the possibility to receive collective reparation for the alleged violation, it is, just as before, a procedural statement whose substantive component should be decided by the correspondent body.

9The same provision is included in article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination; article 2 of the Optional Protocol to the Convention on the Elimination of Discrimination against Women; article 1 of the Optional Protocol to the Convention on the Rights of Persons with Disabilities; and article 5 of the Third Optional Protocol of the Convention on the Rights of the Child. The American Convention on Human Rights in its article 44 expands the provision to any person or group of persons, or any non-governmental entity legally recognized. 18 A Theory of Collective Reparations

Friedrich Rosenfeld proposes a useful definition to conceptualise the idea of collective reparation as ‘the benefits conferred on collectives in order to undo the collective harmthat has been caused as a consequence of a violation of international law’ [Rosenfeld, 2010, 732]. Here, some core elements already present in the idea of individual reparation can be distinguished: definition of victim, identification of harm, and specification of thetype benefits applying to collectives. These three elements are going to be analysed below. Principle 8 of the Basic Principles provides some insight into the definition of victims:

victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law.

Similarly, the Rules of Procedure and Evidence of the International Criminal Court (ICC) define victims as:

(a) “Victims” means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; (b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes [ICC, 2002, rule 85].

Besides natural persons, the second part of this definition seems to recognise certain groups with legal personality as victims as long as they have suffered some material damage, regardless of the relationship between members of such group or any other non-material damages caused. This results very ambiguous, specially in the light of rules 97 and 98:

Rule 97(1). Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both. Rule 98(3). The Court may order that an award for reparations against a convicted person be made through the Trust Fund where the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate [ICC, 2002]. 2.3 Collective Harm, Collective Victim 19

In spite of this implicit recognition of a right to receive collective reparation, there is not an explicit mention or further elaboration on the topic. These latter rules allow granting collective reparations when circumstances of the harm caused so do require; hence, it is the specific characteristics of the damage what determines whether is appropriate toaward collective reparations, it is still not clear how victims deserving a collective reparation can be identified. Thus, one prominent difficulty is to identify the group of persons qualifying as victims of a collective harm and, therefore, to be beneficiaries of collective reparation. Even ifa right to collective reparation is understood as a right attributable to a defined group with legal personality or to an aggregate of individuals sharing some bonds such as ethnicity, religion, or common culture [Rosenfeld, 2010, 736], to be named as collective victim, the violation they have suffered must have a common impact on them. This idea is quite evident in the orthodox notion of genocide, where destruction of certain groups is considered more harmful than killing the same number of individuals not pertaining to an specific group; as Rosenfeld affirms: [o]ne of the most fundamental concepts of collective reparation is that it helps to undo what has been called ‘collective harm’. This term is intended to express the idea that the targeting of a collective can cause harm that differs from the harm caused by targeting the same number of individuals who are not part of a collective [Rosenfeld, 2010, 734]. A collective harm is not just a consequence of numerous violations, but a result of a vic- timisation process by which numerous individual violations can affect specific groups as a whole. As the preamble of the Basic Principles states: ‘contemporary forms of victimisation, while essentially directed against persons, may nevertheless also be directed against groups of persons who are targeted collectively’ [United Nations, 2005], genocide is a manifest example of these victimisation forms which generate a collective harm. A different kind of collective harm is shown by forced displacement of indigenous peoples. The loss resulting from land dispossession is even more acute on them, they do not only have to face the common difficulties of displaced persons, but also their cultural survival is in danger. Their particular connection with territories makes difficult for them to continue exercising their cultural identity out of their land [Gilbert, 2007]. This kind of harm is not experienced by a displaced human group with not such attachment to land; thus, forced displacement has an added collective harm for indigenous groups. There is not a single way to decide what kind of groups should be entitled of collective reparation, the concept of collective victim is intrinsically tied to the idea of collective harm. Even though, some groups such as indigenous or ethnic groups can be considered more 20 A Theory of Collective Reparations vulnerable to suffer collective harm because their strong common identity, other kind of ties between members of groups can be determinant to qualify them as a collective subjected to a collective harm. Some forms of violation can impact groups defined by identity, geography, age, gender, political, or social struggles [ICTJ, 2009, 43], in a sense that affects not only the rights of individuals, but also their identity as a group, the way they interact with each other, or the role of that group in a particular society. Determining a collective victim is particularly complex in after-conflict situations where multiplicity of victims and distinct groups emerge, not necessarily having suffered the same harm or coinciding in what they need to repair their harm [ICTJ, 2009]. Being subjected to the same crime do not suffice for victims to be considered as suffering a collective harm [Rosenfeld, 2010, 743], it is not the sole nature of the crime but the nature of the damage caused by certain forms of victimisation what determines the existence of a collective victim.

2.4 Collective Benefits. Some Examples from the IACtHR

Monetary awards are the most common way of reparation for individual violations, in contrast, collective reparations use to be presented in more intangible forms because they have a different rationale behind: benefits of collective reparations are intended to havea common impact on specific groups so they cannot be enjoyed individually, they are indivisible goods [Rosenfeld, 2010]. Awarding collective reparations has not been a really extended practice, the most relevant examples of it can be found in the jurisprudence of the IACtHR, this body has taken some decisions that seem to support the idea of collective reparation as a response to a collective harm, even though this support is no always explicit [Rosenfeld, 2010, 739]. Cases dealing with indigenous communities are the best examples exhibiting collective reparations as benefits for collective victims who have suffered a collective harm. In the case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, concerning the state granting a concession to a logging company to exploit indigenous lands, the IACtHR found a violation of the right to property (enshrined in article 21 of the American Convention of Human Rights) interpreting it as a collective right: ‘[t]he overall territory of the Community is possessed collectively, and the individuals and families enjoy subsidiary rights of use and occupation’10. Here, the Court seems to have recognised the indigenous community as a collective victim inasmuch as it recognised the community as holder of a collective right. Thus, reparations ordered in this case were limited to collective measures since no individual

10IACtHR, Mayagna (Sumo) Awas Tingi Community v. Nicaragua, Merits, Reparations and Costs. Judgment of August 31, 2001. Series C No. 79. para. 140(a). The Court also noticed that there is a customary international law which affirms the rights of indigenous peoples to their traditional lands,b para.140( ). 2.4 Collective Benefits. Some Examples from the IACtHR 21 right was violated. The Court ordered Nicaragua to carry out the delimitation, demarcation, and titling of the corresponding lands of the members of the Awas Tingni Community in particular, but also to do the same for properties of other indigenous communities within the state11. Furthermore, the Court stated that immaterial damages must also be repaired, to that end the Court required the state to invest in collective services of interest for the indigenous community by agreement with its members12. Explicit employment of the idea of collective harm is present in the decisions about the case of Plan de Sánchez Massacre v. Guatemala. This massacre was part of the genocide campaign against Mayan communities in Guatemala during the 80’s. On July 18 of 1982, in the village of Plan de Sánchez over 280 people, mostly women an children, were abused and killed by members of the Guatemalan Army and paramilitary allies. The Court ordered individual as well as collective reparations. For pecuniary and non-pecuniary damages, the Court required individual monetary compensations to be paid to every individual victim (survivors of the massacre an the next of kin of the deceased)13; besides in its arguments for the case, the IACHR indicated that:

[t]he measures of reparation to try and eradicate the effects of the violations committed by the State can only be determined from a collective perspective, based on an understanding of the socio-cultural characteristics of the Mayan people, such as their cosmovision, spirituality and community social structure, and recognizing the magnitude of the genocidal acts committed against them14.

Furthermore, the Court declared that:

[r]eparations are not exhausted by compensation for pecuniary and non-pecuniary damage; other forms of reparation must be added.[...]These measures have particular relevance in this case, owing to the extreme gravity of the facts and the collective nature of the damage produced15.

The particularities of the group were the determinant factor to consider the harm produced as collective, the massacre did not only affected individuals, but it also hurt the collective identity of the community. Consequently, the Court forced the state to take measures of

11Although, no other communities were identified as victim in this case, this measure should be interpreted as an attempt to prevent the same kind of violations to happen to communities in a similar situation. See footnote 10 para. 164. 12See footnote 10 para. 167. 13IACtHR, Plan de Sánchez Massacre v. Guatemala. Merits, Reparations and Costs. Judgment of November 19, 2004. Series C No. 116. paras. 72-76 and 80-89. 14See footnote 13 para. 90. 15See footnote 13 para. 93. 22 A Theory of Collective Reparations reparation with collective effect as: public acknowledgement of its international responsibility and apology, investigation of the facts (identification, prosecution and punishment of those responsible), translation of the judgments of the Court into the Maya-Achí language, medical and psychological treatment for the victims, and implementing a housing and development programme. Moreover, as guarantee of non-repetition the Court ordered to provide resources for maintenance of a collective memory place, affirming that: ‘[t]his will help raise public awareness to avoid repetition of events such as those that occurred in this case, and keep alive the memory of those who died’16. Similar measures of reparation were adopted in the case of Ituango Massacres v. Colom- bia; here, the Court identified a collective harm based on the victimisation process andthe consequences of the crimes over an entire community not tied by specific cultural bonds. The case refers to different massacres occurred on June 11, 1996 and between October 22 and November 12, 1997 in two different localities of the municipality of Ituango. In a joint action of paramilitary groups and members of the Colombian Army, a total of 19 persons (including a minor) accused of being guerrilla collaborators were tortured and killed, several women raped, houses burned and livestock stolen; besides, over 700 persons were forced to leave their homes due to the terror generated. For pecuniary damages the Court ordered payment of individual compensation for different kind of victims: the next of kin of those executed, those who lost their possessions or whose homes were destroyed and those who were displaced. As in Plan de Sánchez Massacre v. Guatemala, the Court recognised the collective nature of the damage caused17, specially for the people who were displaced considering that:

[t]he massacres that took place in La Granja and El Aro [the two localities affected], added, inter alia, to the fear that similar events could be repeated, the intimidation by the paramilitary groups, the experiences during the days that the massacres occurred, and the damage suffered, resulted in the internal displacement of entire families from these districts[...] Owing to the context in which the facts of this case occurred, the next of kin of the alleged victims, as well as the inhabitants of La Granja and El Aro who survived, experienced profound anguish,[...], their physical and mental health was affected, and their social and work relations, and their family dynamics were altered18.

16See footnote 13 para. 104. 17IACtHR, Ituango Massacres v. Colombia. Merits, Reparations and Costs. Judgment of July 1, 2006. Series C No. 148. para. 396. 18See footnote 17 paras. 125(110,114). 2.4 Collective Benefits. Some Examples from the IACtHR 23

In consequence, after granting reparations for individual pecuniary damage the Court declared that

[it] will not establish compensation for non-pecuniary damage in favor of the persons who were merely displaced [...], because the Court considers it pertinent to grant reparations of a collective nature19.

To redress this collective harm, the Court required measures of satisfaction as effective inves- tigation of the facts, public apology and acknowledgement of international responsibility, publication of the pertinent parts of this judgment, establishment of a housing programme for those who lost their homes, and permanent training education on human rights and inter- national humanitarian law for the Colombian Armed Forces. Another important collective measure required in this case was for the state to implement guarantees of security for the former inhabitants of the Municipality of Ituango who decide to return. Collective measures are not limited to cases of massive violations of human rights, some individual cases have obtained measures not limited to listed victims but extended to benefit groups who, though not named as victims, have been affected by the crimes due to the particular role of the victim within such groups. Even though those measures can have a collective effect, they cannot be understood as collective reparations since they are not intended to repair a collective harm suffered by a collective victim. For instance, in the case of Valle-Jaramillo et al. v. Colombia involving the assassination of a well-known lawyer and human rights defender, the Court declared that

the death of a human rights defender of the caliber of Jesús María Valle Jaramillo can have an intimidating effect on other human rights defenders. The fear caused by such an event can directly reduce the possibility of human rights defenders exercising their right to perform their work by means of denunciations. Furthermore, the Court reiterates that the threats and attacks on the lives and personal integrity of human rights defenders, as well as the impunity enjoyed by those responsible for such acts, are particularly grave because they have not only individual, but also collective effects, inasmuch as society is prevented from learning the truth concerning the observance or the violation of the rights of those subject to the jurisdiction of a specific State20.

Apart from the individual measures, the Court urged the state to take some measures of public scope as the establishment of the ‘Jesús María Valle Jaramillo’ grant to support the work of

19See footnote 17 para. 397. 20IACtHR, Case of Valle-Jaramillo et al. v. Colombia. Merits, Reparations and Costs. Judgment of November 27, 2008. Series C No. 192. para. 98. 24 A Theory of Collective Reparations the Human Rights Defenders Unit of the IACHR and to continue carrying out the Human Rights Defenders Policy which the Colombian government presented as an expression of the guarantee of non-repetition in relation to the protection of the human rights defenders in the country. Likewise, in the case of Escué-Zapata v. Colombia related to the illegal detention, torture, and extrajudicial execution of the indigenous leader Germán Escué-Zapata, the Court required measures that benefit the community he belongs, the Paez People. In spite of acknowledging that the loss of a leader for the Paez People meant a dismemberment and damage to the whole community21, the Court only identified as injured parties22 the direct victim and his relatives, but not his indigenous community;

[h]owever, the Court emphasizes that several of the measures for reparations which also constitute guarantees for non-repetition are general in nature and thus, will influence in the Community’s members23.

Thus, amongst these measures was the obligation for the state to allocate two different funds, one for communal development in memory of Germán Escué-Zapata, to be invested by the Paez People on services of collective interest. The other fund was aimed to create a university chair in the name of the victim for members of indigenous communities who have been victims of human rights violations. Both funds are intended to honor the memory of the victim but, also to serve as means of guarantee of non-repetition of similar events. The foregoing examples show a consistency in the kind of measures of collective impact the Inter-American Court usually orders. Investigation of the facts, human rights training for state officials, structural changes to domestic law, publicise Court’s judgements, public apology and acceptance of responsibility, community development programmes, or estab- lishment of monuments and memorials, to name a few, are common measures of collective scope. Those measures, however, not always correspond to a collective reparation in the sense of the previous definition. When the Court identifies a group as a collective victim or a crime as causing collective harm, reparations awarded are collective reparations by definition, but that is not usually the case, the Court is more flexible in the way itapproaches the matter [Aubry and Henao-Trip, 2011, 3]. Often, when dealing with individual complaints, the Court may order measures that benefit not only identified victims, but also certain groups of society (for instance the cases of Valle-Jaramillo et al. v. Colombia and Escué-Zapata v.

21See footnote 23 para. 124. 22In this case the terms injured party and victim appear to be synonyms, but there are in the practice of the IACtHR certain differences between both concepts. An insightful analysis of these concepts can be found in the work of Clara Sandoval [Sandoval, 2009]. 23IACtHR, case of Escué-Zapata v. Colombia Merits, Reparations and Costs. Judgment of July 4, 2007. Series C No. 165. para. 131. 2.4 Collective Benefits. Some Examples from the IACtHR 25

Colombia) or the society as a whole (as the cases of Serrano-Cruz Sisters v. El Salvador24 or Trujillo-Oroza v. Bolivia25). These kind of measures are normally listed under the heading other forms of reparation, especially as guarantees of non-repetition, they are conceived as dissuasive measures to prevent similar violations to happen again. As Judith Shönsteiner states ‘it can be inferred that the Court intends for these awards to repair more than the harm to an individual victim’ [Schönsteiner, 2007, 144] not by recognising society as a victim but considering the preventing role of the law. Even though, gross violations of human rights affect society, specially when violations are massive, the Court’s aim is not to redress an entire society for the consequences of such crimes, but to attack the roots of them to prevent future recurrence [Schönsteiner, 2007, 163]. In any case, granting measures as guarantees of non-repetition, whether they have the desired deterrent effect or not, have considerable impact on societies because they can help to create trust in state institutions and generate conditions for inclusion of victims. Measures ordered with no intention to undo a collective harm are not collective reparations per se, regardless of the reparative effects they may have for some groups. An important point to notice here is that collective benefits directed to undefined victims lose the element of recognition necessary to give political relevance to the process of reparation as social vindication mechanism for victims.

24IACtHR, Serrano-Cruz Sisters v. El Salvador Merits, Reparations and Costs. Judgment of March 1, 2005. Series C No. 120. 25IACtHR, Trujillo-Oroza v. Bolivia Reparations and Costs. Judgment of February 27, 2002. Series C No. 92

Chapter 3

Contextualising the UP Victimhood

To characterise multiple individual victims of human rights violations under the umbrella of a collective victim it is necessary to analyse their victimisation process and the nature of the harm produced. It is beyond the scope of this work to provide a detailed analysis of the process of elimination of the political movement Unión Patriótica, but some comments should be made before to continue to analyse the collective harm produced on the group and the possible measures to repair that harm. Different data collected suggest that most of the members of the movement assassinated perished under the modality of selective murder or in massacres, often perpetrated with a defined list of targets [Romero, 2011]. This systematic character of the persecution against the UP has been repeatedly contested by Colombian governments. In an attempt to minimise the magnitude of the facts, different administrations have claimed that it is a phenomenon of multiple unrelated individual events attributable to the climate of generalised violence concomitant with the Colombian conflict [Cepeda and Girón, 2005b]. This official script has been refuted by victims and by several reports and individual sentences which describe the attacks as careful and planned. For instance, in the decision about the case of Manuel Cepeda v. Colombia the IACtHR recognised that:

Regardless of the existence of a plan specifically named “coup de grâce,” the Court finds that an organized structure existed that decided, planned and carried out the execution of Senator Cepeda Vargas[...] the execution of Senator Cepeda Vargas was fostered, or at least permitted, by the series of abstentions of several public authorities and institutions from adopting the necessary measures to protect his life, in particular the absence of an adequate investigation into the threats within the framework of an alleged plan to exterminate leaders of the UP. 28 Contextualising the UP Victimhood

In this case, it is obvious that the execution of a senator of the Republic could not have been perpetrated without the necessary planning and coordination1. In fact, in regards to the mentioned plan the Court observed that several of the individuals indicated as victims of the said “coup de grâce plan,” were indeed threatened, murdered, or suffered an attempt on their life2. Coup de grâce was one of the elimination plans denounced by the victims even before it started3. Those plans were aimed to achieve different objectives: to undermine national structures of the movement by assassinating or kidnapping their elected leaders; to wipe out the influence of the UP in certain regions with strong electoral support by killing not only party leaders, but also by terrorising population with massacres [Matta, 2002; Campos, 2003]. Moreover, not only affiliates to the party were victimised, those crimes extended to relatives, sympathisers or anyone identified as supporter of the party [Gómez-Suárez, 2015, 33]. This reveals not only an intention to eliminate the political group but also to destroy its social basis [Cepeda, 2006]. The Unión Patriótica was a legally constituted political party, as such it should enjoyed legal protection from the state to carry out its political activities, this legal protection can only be conceived as a collective right since it is attributable to the group as such not to its individual members. As Friedrich Rosenfeld states, by having legal personality ‘it might be quite easy to determine the group of victims who have suffered collective harm’ [Rosenfeld, 2010, 743], it also facilitates the enforceability of the right to collective reparation. Being a political party has also a social component relevant to shape the nature and identity of the collective-self of the group. Formally, the party is made up of individuals who voluntarily joint the movement, membership defines a closed group; ‘[h]owever, the party’s proposals always transcend its members, bringing to- gether other sectors of social networks who [though not being formal members of the party] are labelled as supporters, sympatisers or militants’ [Gómez-Suárez, 2015, 33]. This label also encompasses persons not necessarily interested in the political party such as relatives of members, extended families or friends, all of them form a more open structure which is part of the social basis on the group. For the UP case, the collective victim is made up of formal members of the party and its social fabric as they are all affected by the same victimisation pattern. 1Manuel Cepeda Vargas v. Colombia. Preliminary objections, merits, reparations and Costs. Judgement May 26, 2010. Series C, 213. Paras. 101, 102. 2See footnote1 para 98. 3See footnote6 chapter1. 3.1 The Harm 29

3.1 The Harm

Attempt to eliminate an entire human group has severe consequences for individuals pertain- ing to the group but also for the group itself and the society which hosts it. The harm due to the genocidal campaign against the UP can be classified in two interrelated categories; first, a process of stigmatisation that reinforced the selection of targets of violations and, more importantly, that justified and continue legitimising such violations creating a climate of impunity and denial of this barbarity. Second, a sustained state of political repression, fed by the stigmatisation of the group, by which the movement has been gradually excluded losing its political relevance and support. The stigmatisation corresponds to one of the underlying motivations to justify the ha- rassment and destruction of the group. The condition of its emergence as a means of social integration of an insurgent movement in truce, but with no clear intention for a total demo- bilisation, marked a controversy around the legitimacy of the UP as a political group. As it was said before (see section 1.1) the party was an heterogeneous group, some members were former guerrillas but most of them were not. Naturally, at the beginning the party maintained a close relationship with the FARC, always declaring the independence between both [Ortiz, 2008, 39-44]; nevertheless, that relationship was perceived as an evidence of the application of the strategy of “combination of all forms of struggle”, a known Communist strategy of combining armed fight with political proselytism to seize the power [Dudley, 2004]. The ties between the UP and the FARC were broken after the end of the peace process in June 1987. By then, some guerrilla delegates withdrew from the UP and returned to the FARC4, ‘[w]hat was once a party created as a messenger for peace was abandoned by those who returned to arms’ [Gómez-Suárez, 2007, 640], in this situation the UP’s directives re-stated their independence from the guerrilla movement and highlighted the civilian character of the group [Gómez-Suárez, 2015, 37]. Nonetheless, the identification of the UP as the guerrillas’s political arm was already entrenched in the popular imagination, and most importantly in the mentalities of perpetrators. In fact perpetrators’ mentality worked in such a way that

[they] did not believe that by annihilating the UP they were violating the law. Instead, they thought that they were resolving the social, political and economic problems of the Colombian crisis [Gómez-Suárez, 2007, 647].

Under this logic, the UP was considered a threat for the Colombian political stability due in part to the high social content of its political agenda coinciding, suspiciously to some, with

4As the case of Iván Márquez who was a disarmed FARC member of the UP and served as a congressman for the party representing Caquetá Department. Nowadays, after have returned to the guerrilla, he is member of the FARC’s negotiation team in Havana. 30 Contextualising the UP Victimhood some proposals of the FARC’s social platform. Members of the party were taken as disguised guerrillas or at least as guerrilla supporters, hence they became legitimate military objectives within the war against illegal armed groups; even though the Colombian state have always had adequate legal instruments and institutions to fight that war. Thus, this argument only trivialise the distinction between combatants and non-combatants [Cepeda and Girón, 2005a, 276] to justify the elimination of political adversaries. Circulation of this narrative not only fostered the barbarity against the UP, it also pro- moted, in the Colombian society, a hostile environment against the group which perpetuated the impunity of the crimes committed and generated a direct and long-lasting stigmatisation of those formally affiliated with the party, militants, leaders or elected members, andits broad social fabric. This stigmatisation gradually generated social exclusion of the group [Cepeda and Girón, 2005a, 277-278]: partners of political members were fired of their jobs or simply not hired for any position, companies were afraid to suffer attacks or to be identified as supporters of the UP; children were denied access to schools or even their friends stopped visiting them for considering unacceptable their parent’s political activities. Exclusion forced families to live an anonymous and silent life, very often children were instructed not to speak about their parents political affiliation or not to take part in any discussion of political content in their schools. Apart from psychological damages at personal level, what could be particularly severe on children, the ostracism generated by this stigmatisation hides a pernicious moral judgement

[it sustains] a state of dehumanisation [...] that creates a collective feeling that members of that group have ceased to belong to the human species or, at least, they have a lower status that makes them deserving of all kinds of outrages5.

The stigmatisation divests victims of their dignity as human beings deserving consideration, the segregation divests them of their rights as equal citizens; both processes are concomitant with the violations committed. In a perverse cycle, they become condition and effect of the victimisation [Cepeda and Girón, 2005a, 276]. The narrative that has designated UP members as social enemies also has had conse- quences for its political activity. Constant loss of leaders and party members elected to different public offices weakened the convening power of the movement and its possibility to

5Original citation in Spanish: [Esto genera] un estado de deshumanización [... que crea] un sentimiento colectivo de que los miembros de ese grupo han dejado de pertenecer a la especie humana, o que, por lo menos, tienen una condición inferior que los hace merecedores de toda clase de ultrajes [Cepeda and Girón, 2005a, 276]. 3.1 The Harm 31 actually exercise political power in those regions where it had electoral and social support. Between 1984 and 1997, 15 mayors, 145 regional deputies, 11 national deputies and 3 senators were assassinated together with 9 mayor candidates and 2 presidential candidates [Romero, 2011], in an attempt to prevent the party to have any representation in governing institutions at regional or national level. Perpetrators’ tactic here was not to eliminate specific threats by selective killings or implementation of banning policies, as it had been the common practice in Colombia with previous opposition movements, particularly the Communist Party; with the UP the intention was to destroy the group applying a multilevel strategy:

1) destabilising its organizational structure by assassinating its most visible leaders,

2) diminishing its social support through massacres targeting populations with known (or believed) support for the movement,

3) breaking up its social fabric with abuses against relatives and sympathisers in order to discourage moral and electoral support or affiliation of new members,

4) vanishing the historical memory of the political movement by continuing threatening, killing and slandering survivors, relatives of the deceased and new members, and destroying evidence of its role in the Colombian politics6.

As a consequence, the UP is precluded from participating in the political arena on equal terms with other movements, thus perverting the democratic principle of ideological plurality and free dissent. Furthermore, the violence exerted to stop the political success of the party has led to violations of several political rights such as right to hold and to impart opinions and ideas, freedom of association, right to take part in public affairs, right to vote without coercion and right to be elected. All these rights were massively violated in such a way that the political participation of the entire group is blocked. The UP was gradually excluded as a real political option, not because people voluntarily ceased to support the party or to believe in its political project, but because they were forced to do so in virtue of the abuses committed and the fear generated. To give an example, in the 1986 presidential elections the UP candidate Jaime Pardo obtained 328.752 votes, this result positioned the UP as the third political force in Colombia. By 1990, with 870 deaths

6Within a process called by Gloria Gaitán “memorycide”, repressive states try to remove all traces of revolutionary character that can generate public sympathy, in order to suppress these ideologies by manipulating the national history [Gloria Gaitán. Political Scientist, 2015]. In numerous occasions the Colombian armed forces have confiscated historical documents from the hands of families, containing letters, pictures, or internal party communications. Often, official records about members of the UP elected to different offices mysteriously disappear. For example, the archives of the municipality of Segovia keeps no record of the appointment of Álvaro Fernández as Mayor between 1986 and 1987. 32 Contextualising the UP Victimhood accumulated [Romero, 2011], the party was forced to withdraw from the electoral race, since its presidential candidate for that opportunity, Bernardo Jaramillo, was assassinated two months before the elections. Later, in the elections for National Constituent Assembly held in December 1990, the party received 95.098 votes, only in four years the UP lost almost three quarters of their voters becoming the fifth political force; the violent repression had indeed a significant impact on the political influence of the movement. Contrary to what was promised in La Uribe agreement, the government did not provide enough guarantees of participation nor effective protection for the group, most of the facts have not been investigated and those responsible are still unpunished. Moreover, members of different Colombian governments, and specially officials of the armed forces, have echoed the message of stigmatisation to distort the UP’s political intentions feeding the rejection of this party as a legitimate political actor. Thus, the UP was defenceless and powerless in front of its hunters. As a result, many members of the party were forced to either deny their political identity or leave their regions, and eventually the country, in order to survive [Gómez-Suárez, 2007, 651], this of course, due to the absence of any other political proposal reflecting similar convictions, meant resigning to any political activity, what for some individuals would account renunciation to their very own way of life. That political orphanhood, has also a collective dimension, not only the right to legally do politics is denied to a certain group, namely the UP, but also the political party itself is banished from the range of options available to the society. Furthermore, for the Colombian society the persecution against a political group creates mistrust in political institutions and politics itself, in some sectors of society it generates a sentiment of scepticism about the possibility of civilised political dissent, re-enforcing the position of those who believe that the only way to practice opposition in the country is through the armed fight [Cepeda and Girón, 2005a, 278-279]. The practice of political exclusion violates individual political rights and besides it constitutes an attack on the collective dignity of the political group making it lose its raison d’être.

3.2 The Remedy

Currently, there are two Colombian laws including provisions for reparations. The so called Justice and Peace Law and the Victims and Land Restitution Law. May be for a few individual victims those instruments could provide some reparative measures, but for the specific case of the UP none of them represents an adequate instrument of reparation. Justice and Peace Law, was mainly designed to facilitate demobilisation of paramilitary groups, who are considered the primary responsible for displacement and land dispossession 3.2 The Remedy 33 in Colombia [García-Godos and Lid, 2010, 491]; even though, the law could eventually cover demobilised guerrillas. In exchange of total confession of crimes, those protected by this law would received between 5 and 8 years of sentence. This law does not provide adequate procedures to clarify the crimes committed; particularly, for crimes against the UP it does not offer mechanisms to establish responsibility of state agents involved, since the definition of victim only includes people victimised by illegal armed7 groups , this restricted definition excludes a gross sector of the UP victims whose perpetrators, as it has beenalready argued, included complicity between paramilitaries and state officials. Besides, Justice and Peace Law does not present solid guarantees of non-repetition, since it does not effectively contribute to dismantle paramilitary structures; in fact, there is evidence of creation of new groups, and continued activity and re-organisation of old ones [Human Rights Wacht, 2015; Amnesty International, 2015]. Reparations in Justice and Peace Law are ordered by a judge, who evaluates the harm caused by the crime and decides what measures are appropriate under the principles of integral reparations defined on article8 44 . In practice, with no more than 20 sentences promulgated under this law on its 10 years of validity, reparations have been restricted to monetary compensation (with long delay in the payments), leaving aside any symbolic measure in a waiting list. Although, the law foresees collective reparations, none of the sentences have ordered that, it is mainly a process focused on individual harms. On the other hand, Victims and Land Restitution Law was intended for a wider range of beneficiaries, victims of violations of international human rights law or international humanitarian law, independently of who is responsible for those acts but with a direct causal relation with the Colombian armed conflict, and only for violations occurred after 1985. The aim of this law, as it is stated on its article 2, is to provide humanitarian aid, attention, assistance and reparation for victims. Since its design, it was conceived with a spirit of solidarity with victims, ignoring any responsibility from the state. In its article 9, the law clearly remarks this characteristic:

[the measures ]contained in this Act shall not imply recognition nor shall be presumed or interpreted as recognition of the responsibility of the State [...] The fact that the state recognises the status of victim under the terms of this law, shall

7Article 5. Definition of Victim. Law 975, 2005. Available in http://goo.gl/dFtmwG. 8This law understands these as acts of integral reparation: delivering to the State illegally obtained goods to repair victims; a public declaration restoring the victim’s dignity; public acknowledgement of the offence caused, public declaration of remorse, offender’s direct solicitude of forgiveness to the victims and promise of non-recurrence in the same offences; effective collaboration in locating kidnapped or disappeared persons or their mortal remains, helping on their identification, exhumation and further reburial. 34 Contextualising the UP Victimhood

not be taken into account by any judicial or disciplinary authority as proof of the responsibility of the State or its agents9.

In this sense, this law treats victims of human rights violations similarly to victims of natural disasters: they do not need any political recognition, just social solidarity in form of relief aid; the state was not responsible for their suffering at all, it just happened. Within a prolonged armed conflict as the Colombian one, it is naive to believe that the state has not responsibility at all with “production” of victims, of course not all violations are committed by state officials or with their complicity, but the state has an obligation toprevent, to stop, and to investigate violations of rights of its citizens. Without acknowledgement of responsibility, victims are not recognised as holders of rights so, their dignity as fellow citizens is not restored; thus, under this framework reparations lose their significance. Before continuing, it should taken into account that in the UP case, damages are not exclusively collective, there are obviously individual damages from assassinations, disap- pearances, tortures and alike, that produce effects on the direct victims and their families. These individual violations are encompassed within a situation of systematic and collective persecution; therefore, to provide a meaningful reparation for this group, individual and collective harms need to be addressed; moreover, as Naomi Roht-Arriaza affirms:

individual reparations fail to capture the collective element of the harm in situa- tions of mass conflict or repression. In counter-insurgencies and civil conflicts, a major aim of the organisers of atrocities is the destruction of community ties and the community fabric, to preclude the community support for rebels [or] to disperse any organised opposition [Roht-Arriaza, 2004, 169].

Both types of reparations are complementary to each other [Roht-Arriaza, 2009], especially in the particular circumstances of this case. Previously, I categorised the collective harms produced by the destruction campaign against the UP into two main lines: stigmatisation and political repression; both categories of harm can be tackled with a reparation centered in the idea of re-establishing dignity of victims, at individual and collective levels.

9Artcle 9. Victims and Land Restitution Law. Law 1448 of 2011. Original citation in Spanish: [las medidas] contenidas en la presente ley no implican reconocimiento ni podrán presumirse o interpretarse como reconocimiento de la responsabilidad del Estado. El hecho que el Estado reconozca la calidad de víctima en los términos de la presente ley, no podrá ser tenido en cuenta por ninguna autoridad judicial o disciplinaria como prueba de la responsabilidad del Estado o de sus agentes. Available in http://goo.gl/t1Cezm. 3.2 The Remedy 35

Human dignity here, refers to the quality of equal status of every human individual. Equality of human value is established by a process in which individuals identify their own value as humans in relation to all other persons; ideally, this process ‘moves in a progression from an individual’s self-conception to a claim that other persons have no lees than equal [value]’[Kateb, 2011, 5-6]; thus, from this personal identification follows the relation of equality with the others. An immediate moral consequence of this is that

one assaults one’s own dignity when one is a party to serious injustice, or systematic oppression [...] one is acting as if one were more than human, or more human than those whose victimisation one causes or calmly accepts as nothing untoward [Kateb, 2011, 13];

consequently, those victimised are treated as less than human and their dignity is also assaulted. Where this victimisation is collective, what means a process of targeting a group qua group, it could be interpreted as an assault also to collective dignity since in that situation, the group is treated as less than humans. Restoring dignity of victims is not just an exercise of philosophy, since assaults to dignity can take material forms as those mentioned before in the specific case of the UP. Then, the first step on this collective reparation would be a proper recognition of the victims, this does not mean putting a label on the group or writing names on a list of beneficiaries of assistance; it requires a re-affirmation of the equal moral status of the victims by a publicand official acknowledgement of the state’s responsibility on the facts, this recognition haslegal implications for the state, it will be then obliged to provide reparation for those whose rights have been violated. To repair the damaged due to stigmatisation, the stigma must be erased; nonetheless, this is a long process because stigmas take time to be created and rooted in any social imaginary; even though, some immediate actions must be undertaken to start the process. Clarification of the history of the political party, its origins, proposals, trajectory and subsequent annihilation. These historical contents should be disseminated as wide as possible within the Colombian society, through state funded projects as documentaries, books or academic studies, and including them on history texts. Specially relevant in this sense, is the proposal of Reiniciar to create a mandatory course that exposes those contents at school and university levels [Aponte, 2007, 217], this could be implemented in a similar way to what is currently made with the obligatory course of Democracy and Constitution at all educational 36 Contextualising the UP Victimhood

levels10. It is important that this kind of materials are designed by multidisciplinary groups, including scholars, state officials, and victims, to give an image as less biased as possible. Restoration of the “good name” of members of the party victims of violations, through actions aimed to preserve and to clean their memory. In order to re-affirm the dignity of those persons, these kind of actions should remark the character of them as normal, equal persons with different ideas, this remarking is important because the stigmatisation tries to equates difference of thought with difference of value as a person, to justify unequal treatment. A great example of the type of actions I am referring to, is the project entitled Memory Albums. Visual Narrations11, designed by the artist Luisa Santamaría, who is daughter of the assassinated leader of the UP Gabriel Santamaría. In her project, Santamaría creates photo albums of some UP leaders assassinated, the images in the albums are aimed to narrate the history of a person in four moments: childhood-youth, family life, political life and, finally, death. These albums are handmade by relatives of the leaders using common pictures, the kind that anyone has in a family album, giving them an aura of naturalness and intimacy. Santamaría’s project is publicly funded by the CNMH in the context of a general call for artistic projects of historical memory, but it is not immerse in any official and public project or policy aimed to restore the dignity of the UP victims, that is why it does not constitute a reparation; in fact it is not deemed by participating victims as a dignifying action from the Colombian state, but as a personal effort from Luisa to honor the memory of her father and his political companions. Investigation of the violations and punishment of those responsible, specially if they were state officials and removing from offices those who are still there. These measures are significant, not just from a narrow legal interpretation of the idea of justice onlyinits retributive dimension, investigating the facts shows respect for victims: what have happened to them is important enough to be investigated, it was unacceptable and should be punished. Investigations, if they are judiciously undertaken, can provide an official version of what is already known or intuited by the victims, vindicating their claims before an sceptical society. It is worth noting that family victims have been very persistent in carrying out their own investigations, collecting evidence and testimonies and repeatedly knocking on the doors of the prosecutors; not for nothing were the victims themselves who since the beginning unmasked and denounced the plans to exterminate them. As valuable as this is, it is a task for the state to fulfill its duty to investigate. Although, as the IACHR has pointed outinits

10Article 14 of the General Education Act No. 115 of 1994, and Decree 1860 of the same year, stated that in addition to the mandatory areas, every educative establishment should provide training in, amongst other areas, “education for justice, peace, democracy, solidarity and, in general formation, in human values”. 11This project is currently under development, its first products will be publicly presented on 28, 29,and30 October 2015, during an international event organised by the CNMH in Bogotá. 3.2 The Remedy 37 last Country Report on Colombia, it is important ‘[to consider] the investigations and reports produced by civil society in this compilation exercise’ [IACHR, 2013, para. 385], this could serve as an strategy of empowerment for the victims. One of the measures to repair the damage of political repression that has been repeatedly claimed by the victims is the re-establishment of the legal personality of the UP. As it was commented before, this status has already been recovered thanks to an individual legal claim, not as a reparation. Even though, a reparation could help to strengthen the quality of this legal status. Moreover, to mitigate the effects of political exclusion some legal reforms should be implemented, these reforms would affect not only the political rights of the UP, but the whole Colombian political sector. Securing participation conditions for the UP in the same terms as other political move- ments to effectively carry out its political activities, including funding and facilities to access to the media. The UP recovered its legal status on July 2013, and it registered candidates to run for the legislative elections of March 9, 2014. Only in late November 2013 the govern- ment authorised to transfer the funds to finance the UP’s political campaign, these funds area right of all political parties in Colombia. On that occasion the UP had to prepare its electoral campaign in the middle of financial and logistic scarcity, the deserved institutional spaces in radio and television were not assigned until one month before the elections preventing a wider dissemination of its political project [Semana, 2014]. The commitment to provide this conditions should be accompanied by special dispositions allowing the UP to hold its legal personality, for a reasonable amount of time, without the obligation to pass the minimum electoral threshold. The current law (Law 996, 2005), only provides funding to partially finance political campaigns and limited spaces on radio and television in the context of electoral processes; resources for operation outside of campaign times come from allocation of money according to the electoral results and from private donations, mainly contributions of members of the parties. This system has two main defects, majority parties will always receive more resources and, even though parties are subjected to state supervision, it is hard to avoid financing from illegal groups, particularly paramilitaries. To avoid discrimination of minority groups and the vulnerability to illegal funding, a strong support specially for opposition parties, and more control from the state would be necessary. Funding projects to preserve the historical memory of the Unión Patriótica. Similarly to actions aimed to restore the “good name” of members of the party as persons, measures must be taken to restore the dignity of the movement discrediting the accusations of being “guerrilla allies” or “supporters of the armed fight”, the Colombian state must not support these ideas which contribute to prolong stigmatisation and political mistrust and repression 38 Contextualising the UP Victimhood to the group. A special programme or unit within the CNMH and the regional Memory Museums, should be created to fund and develop projects to collect the memory of the group, gathering historical archives of the UP on its documentation centres and facilitating creation of artistic projects about the violations suffered by this group. From its creation in 2011 under Decree 4803, the CNMH has presented more than 30 reports which only in few cases address the issue of the UP tangentially, the most notable mention of the persecution against the UP is found in the report about the massacres of Segovia and Remedios CNMH[2010]. In late 2012, the Centre approved a project to study specific cases of forced disappearance of UP members, but the results nave not been presented yet12. In Colombia, not only the UP has been subjected to political discredit; actually, opposition parties as Polo Democrático Alternativo or social organisations as Marcha Patriótica, are also targets of this kind of accusations. Certain ideologies are viewed with suspicion in a country in which every reference to social claims is identified with subversive ideas, making the very exercise of political opposition difficult and dangerous. Part of the reparation forthe UP should be aimed to guarantee the free exercise of political opposition not only for the benefit of the UP, but for any other political movement considered in the opposition. The following measures are intended to reach this objective. Put an end to the doctrine of “internal enemy” which criminalise the opposition and social protest in Colombia, allowing military persecution against those considered internal enemies. Almost all countries in Latin-America have eliminated this doctrine from its military instruction but not Colombia, this doctrine generates added risks in the political exercise, since members of legal opposition could not be fully protected by the armed forces as every other citizen, they can be object of investigation or attack just because their ideology could classify them as enemies. This doctrine also violates the constitution that guarantees the exercise of political opposition. Any control over political activities should come from political or judicial institutions, the army must not intervene unless it is required by law and always respecting fundamental rights. Regulation of the Statute of Opposition to offer effective legal guarantees to opposi- tion groups. Most modern democracies, have understood the important role of opposition movements within their governments as element for improving political processes through its functions of controlling government’s actions and maintaining the balance of power. Recognition of civil and political rights ,in as much as they apply to every political group, would suffice to guarantee the exercise of political opposition. The Colombian Constitution in its article 112, recognises to every legal political group declared in opposition, different

12Project entitled La dinámica de la desparición forzada y el secuestro en Colombia (1970-2010) un contribución a la verdad y a la memoria historica en procura de garantías de no repetición, funded under contract 096 signed on 18 September 2012, available in http://goo.gl/OoIsh4. 3.2 The Remedy 39 rights to carry out their political activities. Use of the media, access to official information and documentation and right to reply, are the most notorious. Nevertheless, the history of repression and persecution against political contenders have demonstrated that the current legal framework is not enough to guarantee such exercise [PNUD, 2011]. In fact since 1991, the same article 112 of the Constitution promised the creation of the Statute of Opposition to regulate the matter but it has not been done yet. A new Statute of Opposition must include at least measures as allocation of enough budget to opposition groups, to have equivalent material conditions as majority groups; assigning members of the opposition to state supervisory bodies, permanently; providing security guarantees to protect the life and personal integrity of members of the opposition parties [PNUD, 2011, 35-40]. For the specific case of UP members, there is a special protection unit which, as was evident during the last legislative elections in 2014, has not the necessary monetary, logistic and personal resources to efficiently respond to massive threats. Re-structuring security schemes and coherent allocation of funds to protection and early response to threats, must be a priority to show real concern for the lives of opposition members. Another important right that must be included in the Statute is the right to reply, which constitutes a instrument of defence to refute the frequent false accusations from the govern- ment of other state institutions or agents. Moreover, this right also refers to allow opposition groups effective access to media to make visible their points of view and expose to society their arguments about government political decisions. Exercising this right is particularly relevant for UP members since stigmatisation campaigns have also been maintained from inside the government, the UP should have preferential access to designated spaces on the media to reply constant accusations, this reply should also be duplicated by the state on its official organs of information to show respect for the party.

Chapter 4

How the UP’s Reparation Could Impact the Colombian Peace Process?

During the peace process initiated in 1984 an finalised in 1987, the government failed to provide guarantees of participation and security for the party created from that process, which included some disarmed guerrillas, but mainly civilians. Even though, some political reforms were implemented to allow more democratic participation, security measures were not adequately implemented or even accorded. The agreement did not include any mechanism to monitor the political participation and security of disarmed members of the FARC; indeed, it is not clear how many of them were killed while participating in the UP1. Moreover, the accord did not set up ‘clear rules for disarmed FARC members of UP to move back and forth’ from guerrilla camps to the political arena [Gómez-Suárez, 2013, 824-825]; in fact, the agreement, at any time, provided for the surrender of weapons by the FARC. These conditions created a political ambiguity around members of the UP (whether or not they were part of the FARC at the same time) which was exploited by victimaries as part of their justifying discourse. As it was argued, the condition of the onset of the UP, undeniably linked to the FARC, was a determinant factor to trigger the persecution against the group. For perpetrators’ narrative, it allowed the simplistic identification of both groups as different manifestations of the same dangerous ideology. It would be irresponsible to ignore the victims of this identification in the current peace process, since they are an evidence of the lack ofpolitical will of governments to materialise the promised guarantees and take responsibility for their failures. Demands of a reparation for the UP comes not only from the victims, shortly before the discussion about the second point of the current peace process’ agenda begun, the FARC

1The data collected by Roberto Romero include 38 guerrilla members in truce assassinated between 1984 and 1997 [Romero, 2011, 165]. 42 How the UP’s Reparation Could Impact the Colombian Peace Process?

published a document with 100 minimal proposals for political participation, one of the proposals was to urge the Colombian government to provide an integral reparation for the victims of the genocide against the Patriotic Union; the first of them being the necessity ofa public recognition of the state responsibility on the facts [FARC-EP, 2013a, para. 21]. The General Agreement signed by the FARC and the current Colombian Government on the 26th of August 2012 in Havana, establishes as the second point of the agenda “Political Participation”, it having the following contents:

1. Rights and guarantees for the exercise of the political opposition in general and in particular for the new movements that arise after the signing of the Final Agreement. Access to the media. 2. Democratic mechanisms of citizen participation, including those of direct participation, on different levels and diverse themes. 3. Effective measures to promote greater participation in the national, regional and local policy of all sectors, including the most vulnerable population, equality of conditions and with guarantees of security [FARC-EP, 2012].

The most challenging of these requirements are the actual possibilities of the Colombian government to offer satisfactory guarantees for political participation for demobilised guerril- las and effective guarantees to protect the lives of those who want to participate in politics [Gómez-Suárez, 2013, 821]. In spite of being now included in the national constitution and different laws, it has been difficult to materialise such guarantees in real mechanisms of democratic participation; for the current peace process this difficulty rests not only in the lack of real content of the laws, but also in the long tradition of violence against opposition movements in Colombia and the lack of effective responses to it from governments in terms of investigation and, specially, prevention. The second point of the agenda has already been discussed and agreed on November 2013. Some of the measures of reparation for the UP previously exposed (see chapter 3.2), coincide with what is included in the Second Joint Report about this point; the right to reply, the statute of opposition, improvement funding and access to media for opposition parties, are mentioned in that report as points accorded [FARC-EP, 2013b]. The Report also introduces a mechanism of protection, the Integrated Security System for the Practice of Politics, aimed to promote respect and protection for life and freedom of thought and opinion of those who exercise politics. Despite these announcements, since the conversations are held under the principle that “nothing is agreed until everything is agreed”, the materialisation of any of the topics agreed during the advancement of negotiations, will not come until the end of the process, once 43 the final agreement has been signed, leaving the door open to uncertainty about thereal possibilities for that realisation. In this context, implementing a plan of reparations for the UP would have symbolic and material effects over the negotiation process that would help to prepare the ground for an eventual participation of demobilised FARC members in politics. The symbolic element of implementing a reparation for the UP would show that the government has:

1) real commitment to comply with its obligations;

2) seriousness regarding the political opposition;

3) effective ability to stand in front of those opposed to the peace process; and

4) willingness to protect FARC’s members lives.

Points 1) and 2) are relevant to consolidate political trust. In different communications the FARC has informed what they interpret as a lack of consistency between what is agreed in Cuba and some government decisions taken in Colombia. Taking measures regarding the needs of the UP, would be a good gesture in this direction, the state has a legal obligation to repair these victims, promoting a reparation for them would show respect for that obligation, and willingness to accept its own responsibilities with victims. Colombian guerrillas are considered the major victimary (disputing this first place with paramilitaries) [CNMH, 2013]; however, as different reports reveal, Colombian security forces are implicated in large numbers of violations [CNMH, 2013; Amnesty International, 2015; Human Rights Wacht, 2015] and the government has failed to properly address the issue in terms of recognition of its responsibility, investigation and redress for victims. On June 2015, in the joint report about progress in the discussion of the fifth point of the agenda, “Victims”, the parties announced an agreement to create the Commission for the Elucidation of Truth, Coexistence and Non-Repetition [FARC-EP, 2015]. Although, this Commission will not set in motion until the end of the whole process, it would be valuable that the Colombian government take steps to show commitment with the purposes of such commission. Certainly, the UP is not the only opposition group in the Colombian political landscape2, but it is the most vulnerable due to its limited resources and the effects of the extermination it have suffered. By implementing measures benefiting the political action of the UP, the current government could show its respect for the opposition in general.

2Nowadays, the biggest opposition party in Colombia is the Polo Democrático Alternativo. It has been also subjected to defamations, threatens, and even electoral fraud; its members also feel unsafe and unsupported by the government. This party has been very active in campaigning to make the Statute of Opposition a reality. 44 How the UP’s Reparation Could Impact the Colombian Peace Process?

The last two points, 3) and 4), are interrelated and have great importance. Future demobilised guerrilla fighters participating in politics would have the same vulnerability that members of the UP have had and continue having: for wide Colombian social circles it is complicated to accept them as legitimate political actors, they are considered as a threat by those opposed to social changes. People contrary to the current peace process belongs to the same social sectors as those opposed to the Betancur’s process, who eventually became part of the perpetrators of the UP. Those sectors include radical members of the right-wing, security forces, entrepreneurs, cattle ranchers, paramilitaries and drug traffickers, who internalised and circulated the narrative that promoted the extermination of the UP. This narrative is still present in the Colombian society and could easily evolve in a genocidal mentality, as Andrei Gómez-Suárez calls it [Gómez-Suárez, 2007], putting the lives of demobilised FARC members under serious risk. Providing a reparation for the UP victims would send a message of total rejection of this narrative to the Colombian society; specific measures of reparation to tackle the stigamisation would tell potential victimaries that any political group arising from a peace agreement with the FARC will have complete legitimacy and legality, any attack to such group will be morally and legally inadmissible. Some material effects a reparation for the UP could have in the peace process, are related to the possibility to evaluate the efficiency in the application of measures to guarantee equal political participation of opposition parties and to respect the right to life, liberty and security of opposition members. After the UP recovered its political legality, in 2013, threats and public slanders have returned; besides, the government has not applied the due diligence to provide the financial and logistical resources necessary to carry out its political campaign. In a recent interview with a national journal, the current president of the UP, Aída Abella, declared:

If they respect us, if we are not killed again, if they give us guarantees of political action, [this] can give more confidence to armed insurgency to join this [peace] process [...] We [the UP] always think in contributing to peace, to prove that it is possible to do politics [in the opposition]. We struggle to trust, but it is clear that if we are killed again, there will be no peace process here3 [El Tiempo, 2015].

3Original citation in Spanish:

Si nos respetan, si no nos vuelven a matar, si nos dan garantías para el accionar político, puede dar más confianza a la insurgencia armada para que se anime a ir a este proceso. Cuando decidimos volver del exilio pensamos siempre en contribuir a la paz, para probar que se puede hacer política. Bregamos para dar confianza, porque es claro que si nos vuelven a matar, acá no habrá proceso de paz. 45

Any reparation for the UP must include measures guaranteeing the free and safe exercise of politics. Measures to protect the lives of UP members must be a priority, a new bloodshed would demonstrate the impossibility to do opposition politics in Colombia and the inability of the government to protect part of its citizens.

If measures for political guarantees are actually applied in the short-term, it would be possible to evaluate their efficacy and to envisage their adequacy for future application fora political party created by demobilised guerrillas; so far that evaluation would have negative results.

Investigations of the violations suffered by the Unión Patriótica can be also interpreted as guarantees of non-repetition. These kind of guarantees, as it was mentioned before (see section 2.4) are aimed to avoid repetition of similar violations in a particular society. Under the current circumstances the most vulnerable groups to suffer that kind of violations are the UP itself and future demobilised members of the FARC (whether or not a new political party). Investigating the UP’s facts and punishing those responsible would allow to identify patterns of victimisation and to establish complicity relations between different perpetrators, particularly between paramilitaries and Colombian security forces; with this information it could be possible to neutralise some threats by applying not only criminal justice, but also implementing institutional reforms with similar objectives such as the proposed elimination of the doctrine of internal enemy in Colombian military instruction.

Since 2005, the Colombian government has promulgated different laws presenting them within the framework of transitional justice, but without any real transition of the Colombian society from one state to another. Justice and Peace Law, for example, is intended to resolve the conflict between paramilitaries and the state, while Victims and Land Restitution Lawis aimed to provide assistance to victims of the armed conflict. Both mechanisms have had very low impact on victims and none in de-escalating the conflict to foster social reconciliation and to drive society to a transition [Amnesty International, 2015; Human Rights Wacht, 2015]; it is difficult to reconcile a society without effective mechanisms to stop the production of victims. Transition does not mean a state of total peace, but some comparative change should be noticed. The current peace process could have greater impact on that areas, nonetheless, it would be still a partial solution of the conflict because it only involves some actors of it.It is unrealistic to think that the Colombian conflict will end after a final agreement withthe FARC; although, the FARC has had a prominent role in the Colombian conflict, it is not the only source of violence, other guerrillas, paramilitaries, and criminal organisations are still challenging the state. At this moment, the Colombian situation could be better described as a pre-postconflict context [Theidon, 2007, 66], Colombia is trying to reach a state of transition, 46 How the UP’s Reparation Could Impact the Colombian Peace Process? but is not there yet. It seems appropriate here to borrow the words of Kimberly Theidon about her study on the disarmament of ex-paramilitary combatants in Colombia:

if Colombia does not open a path for those who wish to leave combat behind, [...] they may well return to waging war in ‘el monte’ [Theidon, 2007, 90]; repairing the UP, could fill some steps in that path. Conclusion

The Unión Patriótica is a legitimate offspring of a previous Colombian peace process, and at the same time, is a victim of that process. After the rupture in 1987 of the truce agreed by the Colombian government and the FARC, the UP was left alone without the promised guarantees of security and participation; the agreement between the parties did mention nothing about the fate of the political party it created in the eventuality of a rupture so, it remains as an unfinished business between the parts. Certainly, the disastrous consequences that such a rush agreement had in the destruction of the UP, still put moral weight on both sides. Thus, the destruction of the UP is an undeniable precedent in the current negotiations that must be addressed with due diligence to do not repeat previous mistakes. From this study case, I can conclude that in order to respond to reality and to be effective, it is important that collective reparations are tailored following the needs of victims, what is to say that specific reparations measures should maintain a coherent relationship withthe harms which they are intending to repair; too much focus on cutural bonds disregards the importance that other kind of ties could have to define the collective identity of certain human groups or to shape victimisation processes in the minds of victimaries. Even though, this study is not intended to approach the topic of genocide as such, a corollary from it is that a more flexible approach to the restricted concept of genocide is needed. As some scholars have pointed out, the pattern of violence exhibited in the process of destruction of the UP has characteristics which account for a genocide [Gómez-Suárez, 2015; Cepeda, 2006]; classifying this extermination as multiple crimes against humanity would deny the existence of systematic practices maintained over the time with the intention (whether conscious or not) to destroy the group. Nevertheless, since it is not possible within the current legal framework to declare those crimes as a genocide, any reparation for this group should be designed not on the basis of the legal classification of the crime suffered, but on the harm caused by such crime which, by all means, is consistent with the ordinary effects of genocide.

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