Tuesday, October 11, 2016

Colombia: The Transitional Justice Dream?

(Tom and Andi Bernstein Human Rights Fellow Michael Reed-Hurtado, recently talked with Schell Center Community Fellow Louisa Brown, to discuss the challenges of transitional justice in Colombia and reflect on his time at Yale.)

On September 26, 2016, after four years of negotiations, the Colombian government and the Revolutionary Armed Forces of Colombia (commonly known as the FARC) signed a peace agreement. Submitted to popular vote through a plebiscite on October 2, 2016 Colombians did not ratify the peace deal. A polarized society struggles to seek a national political consensus to find ways to salvage the negotiation effort. Though times are uncertain, a peace deal continues to be closer than ever for a conflict that has raged for half a century, displaced over 6 million people and taken more than 220,000 lives. As a Tom and Andi Bernstein Human Rights Fellow, Michael Reed-Hurtado has followed closely the developments on the negotiations between the FARC and the Colombian government, particularly those related to the protection of victims’ rights.

Given that the plebiscite results did not provide popular ratification of the peace deal, have the negotiations efforts failed?

After last Sunday’s vote, despair and angst prevailed. Most people could not believe the results. The country is clearly split and political actors took advantage of that polarization. After so many years of war, distrust and fear rule emotions and thoughts. Though a clear blow to the governmental course of action in relation to the peace process, the unsuccessful plebiscite created the stage for a much-needed public debate, with all political forces, on an all inclusive peace deal – one that cannot be opposed or even destroyed in a few years. The legal challenges to make the peace deal stick are immense; nevertheless, if we are able to reach a wide political consensus, legal avenues can be put in place. I am hopeful we can soon continue to move forward on the implementation of the agreements. Both the FARC and the Government ratified their commitment to seeking peace.

What are some of the challenges Colombia faces in the wake of a peace agreement?

Colombia continues to face the challenge of constructing and implementing a transitional justice scheme that will satisfy victims’ rights. On paper Colombia has a beautiful theoretical model that talks about holistic action and combines all non judicial with judicial mechanisms. However when one turns to implementation… it is likely to get very messy.  The mechanisms look perfect on paper; however, due the absence of practical considerations in the design phase – such as having a clear overview of caseloads – implementation will present many difficulties. Additionally, discussions tend to concentrate on the mechanisms, such as the truth commission, as ends in and of themselves, and little strategic discussion has taken place regarding the changes that are needed and how the mechanisms will contribute to confront the denial of atrocities and transform the lives of victims.

“There is very little strategic discussion about why the changes are needed and how the mechanisms will help confront the denial of atrocities and transform the lives of victims”

As someone who has worked in the field of transitional justice in Colombia and elsewhere, what lessons have you learned over the years?

I was a practitioner in the field of transitional justice at an imperfect moment in Colombia, when the paramilitaries were demobilizing under the Justice and Peace Law of 2005. At the time, I was continually reacting to what was happening, problems with mechanisms, threats to victims and prosecutors. I didn’t have the time to analyze what was happening during the demobilization process. That experience showed that there is so much literature on transitional justice, but that very little consults implementation. It’s not an issue of having a perfect mechanism; it’s how the mechanism interacts with the local reality.

“It’s not an issue of having a perfect mechanism; it’s how the mechanism interacts with the local reality.”

The field of transitional justice is growing and it’s jumbling up experiences without being context sensitive. One of my greatest frustrations within the field is that writers will jumble up lessons learned from Chile, the Democratic Republic of the Congo, Guatemala, Sri Lanka and Colombia as if they are the same. I’ve found that transitional justice can be both a misnomer and an umbrella where almost anything can be discussed to address post conflict problems. It’s no longer just issues of truth, justice and reconciliation; development is also being considered as a matter of transitional justice.

Colombia has very good students of international practice, the result being an impressive “integral system” for truth, justice and reparations. If you were to evaluate it in the abstract you would say it’s perfect. However, we need to have more discussion about how we’re going to achieve change in urban and rural contexts, at the local level. There needs to be greater understanding of the different levels at play and how they operate together. Within academia, we are often quick to look at instruments at a draft level. We need to move beyond the rhetoric now to look what changes are desired and how they will be achieved. We don’t just need a truth commission for the sake of it, we need to understand how a commission or report will confront the denial of atrocities and impact the lives of victims affected. An agreement is only good when it is implemented and has an effect.

Whilst at Yale, you’ve been working on other aspects of transitional justice in Colombia, aside from the draft agreements. Can you talk a bit about these other projects?

One of the projects worked on concerned the way in which the Inter-American Court of Human Rights holds states responsible for paramilitary activity. The Inter-American Court has been veering towards the establishment of indirect responsibility as a result of paramilitary activity. This is an extremely interesting legal issue and it has been fantastic to be able to engage with students at Yale working on issues of state responsibility and the actions of armed groups. My time at Yale has really been an experience of extreme privilege and productivity. I was able to review all the law of state responsibility from international courts and came up with a concise document for the Inter-American Court of Human Rights. My time at Yale has allowed me to use academia to address practical human rights issues in Colombia.

Another topic I’ve been working on concerns mechanisms for humanitarian exhumations. This is one area that has received very little attention. It’s been a multidisciplinary project and I’m extremely grateful for the ability I have had as a Fellow at the Schell Center to have the privilege of time. This position allowed me to conduct interviews in a different way, to ask slightly different questions than I would have asked if I were in the field. The experience I have built up in the field was critical, but the fact I was at Yale Law School assisted in opening some doors. I engaged with colleagues from different disciplines to craft a series of recommendations on how to conduct a search for the missing, how to apply technical tools and what to do in the moment of identification.

Working with individuals from different backgrounds was incredibly valuable. Working in human rights you’re generally with colleagues in an office and unfortunately most of us are lawyers. I say unfortunately because we tend to stick to being lawyers and the answers lawyers have are not necessarily the most appropriate answers… sometimes it’s not the most appropriate knowledge.

What have you enjoyed most about your time at the Schell Center?

While I was a Fellow at the Schell Center, I was able to teach in the Political Science Department for one semester. It was an extraordinary experience to connect with younger people who are inquisitive and curious about human rights. I’m convinced the law is one avenue of change, but I don’t think it should define the types of changes we seek. Teaching forced me to answer basic questions about the role of law in human rights, questions we don’t really ask ourselves when we’re convinced with what we do.

It’s been incredible to stimulate students and support them into considering a career in human rights. It has been wonderful to engage with students and learn about their interests and link them with human rights organizations in Latin America so they can explore the practical aspects of human rights work. It’s been extremely rewarding to see students produce something concrete for the organizations and learn a huge amount.

Michael Reed-Hurtado was a Tom and Andi Bernstein Human Rights Fellow at the Schell Center from 2014-2016. He has been a practitioner in the field of human rights for more than twenty years, working primarily within Latin America and sporadically in Asia and Africa. He’s an active columnist and commentator in various Colombian news media (print). He recently served as an adviser to the UN High Commissioner for Human Rights on matters related to the Colombian peace process.