About the author(s):
Nelson Camilo Sánchez is Associate Professor of Law and Director of the International Human Rights Clinic at the University of Virginia School of Law. He received an LL.M. from Harvard Law School and obtained his PhD from Universidad Nacional, Bogotá. His research interests include human rights in the inter-American system, transitional justice, the social and legal condition of the internally displaced population in Colombia, and the Colombian peace process. He has published many essays and papers on these subjects, including recently "Could the Colombian Peace Accord Trigger an ICC Investigation on Colombia?," "Justicia para la Paz" (Justice for Peace), and "Corporate Accountability, Reparations, and Distributive Justice in Post-Conflict Societies."
For decades, Colombia has faced an ongoing series of armed conflicts involving a diverse range of non-official armed actors. The legal and public policy landscape of the Colombian state has had to adapt, incorporating a variety of terms to describe these groups—including guerrillas, self-defense militias, paramilitary organizations, non-state armed groups, terrorist entities, organized criminal groups, residual organized armed groups, and dissidents, among others.
This complexity of armed structures, coupled with their significant role in the perpetration of core crimes, explains why the transitional justice mechanisms established in Colombia over recent decades have focused their attention on the legal responsibility of these groups and their members in providing reparations to victims.
Dr Olivia Herman’s book, the focus of this symposium, skillfully chronicles and analyzes Colombia’s efforts in transitional justice. The third section of her work provides a thorough examination of the various legal frameworks adopted over the past two decades, exploring their judicial modifications and reinterpretations. Herman illustrates the Colombian experience as a significant case study in operationalizing the recognition of non-state armed groups (NSAGs) as legal subjects with obligations related to reparations.
Building upon Herman’s in-depth analysis, this blog post seeks to broaden the discussion by providing the political and legal context that has shaped these normative frameworks and their subsequent reforms in Colombia. While Herman’s work offers a valuable international perspective, my intention is to highlight how her analysis not only contributes to the broader global discourse on reparations by non-state armed groups but also provides crucial insights specifically relevant to the Colombian context. By contextualizing Herman’s legal analysis within Colombia’s unique circumstances, I hope to provide the expert readership of this blog with nuanced insights into the processes that may facilitate or impede the operationalisation of the Duty of NSAGs to Provide Reparations.
Evolving Justifications: The Three Pillars of NSAG Reparation Recognition
The legal recognition of NSAGs’ obligation to provide reparations has been established as a legal principle in Colombia for over two decades. However, the justifications for this recognition, along with its intended objectives, have evolved throughout this period. In her book, Herman elucidates how the inherent characteristics of various armed groups can lead to differences in this recognition—highlighting the distinctions between the United Self-Defense Forces of Colombia (AUC) and the FARC guerrilla group. Beyond these structural differences, several key factors have been particularly influential in shaping shifts in perspective regarding reparations. In fact, the Colombian experience demonstrates that a state may have at least three justifications for advancing such recognition:
- Narrative of Responsibility: This encompasses not only individual accountability for specific reparations but also the broader narrative about violence, the past, and the construction of collective memory.
- Financial Resources: This concerns which economic funds can and should be used to cover an extremely costly intervention, especially for a country ravaged by war and destruction.
- Significance for Victims and Justice: This relates to the meaning for victims and their conception of justice when NSAGs that directly committed crimes are the ones directly repairing the damage. Concomitantly, it addresses the contribution to reconciliation and non-repetition that this process can make.
The evolving understanding of these justifications reflects a process of learning and adaptation in Colombia’s transitional justice journey. It underscores the complex interplay between legal principles, political realities, and the pursuit of meaningful justice for victims.
Shifting Responsibilities: The Initial Governmental Approach and Judicial Intervention
The initial rationale for recognizing NSAGs as liable for reparations emerged from the governing party’s desire to distance official armed forces and their civilian leadership from accountability for the violence. For the government, “armed groups at the margins of the law” were deemed solely responsible for the conflict, thereby placing the onus of reparations on these groups.
This governmental maneuver faced strong condemnation from victims’ organizations and human rights advocates, who sought judicial intervention to compel the government to acknowledge its responsibilities under international human rights law. In response, the Constitutional Court implemented amendments, as detailed by Herman, that established varying degrees of responsibility among parties involved in the violence. This framework included liability for the armed group as a whole, the specific units directly committing violations, and individual members engaged in criminal acts. Furthermore, the Court affirmed a residual state obligation for reparations in instances where the justice system failed to uphold victims’ rights through these initial levels of accountability. An additional reason for the Court to validate this responsibility scheme was the question of what should be the primary financial source to cover the cost of reparations.
Practical Challenges: When Ideals Confront Resource Limitations
However, the practical realities soon eclipsed the theoretical framework of reparations. The number of victims eligible for compensation soared dramatically, potentially encompassing over 18% of the Colombian population—nearly ten million individuals—rendering Colombia’s reparation program the most ambitious and costly in the world. Paradoxically, the resources that were voluntarily surrendered by NSAG commanders and members who submitted to justice were limited, often consisting of unusable, low-value assets or items difficult for the fund to monetize effectively.
As a result, the policy approach underwent a significant transformation: rather than relying primarily on funds derived from NSAGs, the reparations program shifted to a model heavily dependent on state resources, with only a minimal contribution from former members of the United Self-Defense Forces of Colombia (AUC). As of October 2024, the government reports an investment of USD 2.6 billion in victim compensation, with only a small percentage attributed to former NSAGs. Unfortunately, current public information on this, and many other reparative metrics, remains limited. However, various official reports suggest that the contribution from these groups is around 5%.
Furthermore, the assets surrendered by ex-combatants presented a series of challenges:
- Poor condition: Many assets were in such a state of disrepair that they had little to no economic value.
- Legal issues: Some assets had unresolved legal problems, making it impossible to sell or monetize them.
- Location difficulties: Many assets could never be physically located.
- Administrative costs: In some cases, the expenses associated with managing and maintaining the assets while awaiting monetization exceeded their current commercial value.
Raising the Bar: FARC Peace Process and Elevated Reparation Expectations
Despite the complexities and challenges experienced over a decade in operationalizing the reparation obligations of the AUC, Colombia embarked on a new chapter with the peace process involving the FARC guerrilla group. By this time, it became evident to the negotiating parties, victims, and Colombian society at large that the FARC bore a moral and legal imperative to contribute to the reparations owed to their victims. While reparations from paramilitary groups had been limited and often frustrated both victims and the bureaucracies tasked with implementing them, they nonetheless established a foundational precedent for the legal and political negotiations with non-state armed groups in the country. This moral obligation was especially tied to the third justification: the impact on victims’ sense of justice and its role in preventing future violence.
However, this did not imply that the other two justifications lost their significance or that victims’ interests diminished. There was substantial expectation that the FARC not only take responsibility for their crimes and acknowledge their role as a widespread perpetrator of violations, but also that they would surrender assets more comprehensively than the AUC had, facing fewer barriers to monetization and transfer to the victims’ fund.
Paradoxically, the unmet expectations regarding paramilitary reparations did not lower the standards for future non-state armed groups; rather, they heightened expectations for ex-combatants to improve their reparative efforts.
As a result, the FARC’s collective surrender of assets for reparations significantly exceeded that of the AUC. Furthermore, in light of the state’s previous shortcomings in managing AUC assets, the processes for receiving, administering, and monetizing these new assets improved, despite ongoing challenges. It is important to note that the surrender of assets valued at approximately USD 54 million constitutes only a small fraction of the financial resources needed for victim compensation. The total estimated cost of compensating all victims of the conflict—beyond just those of the FARC—reaches an astounding USD 4.4 billion.
Beyond Financial Compensation: The JEP’s Restorative Justice Approach
Consequently, the Special Jurisdiction for Peace (JEP) – the court responsible for the legal closure of the armed conflict – has decidedly focused on the restorative content that the NSAGs’ reparation obligation can entail. The JEP’s philosophy is that the reparation obligation extends throughout the process and materializes through a series of actions by NSAG members to satisfy the principles of recognition and centrality of victims in transitional criminal processes. Therefore, former combatants are expected to:
- Make early contributions to recognition, truth, and reparation – meaning the commitment to reparations cannot wait until after judicial sentences.
- Participate honestly and actively in restorative justice activities throughout the process.
- Present concrete reparation plans identifying modalities and required funds.
- Commit to implementation as part of activities with a dual sanction-reparation character.
Specifically, in the case investigating FARC members for hostage-taking, severe deprivations of liberty, and other crimes, the JEP accepted the following actions as fulfillment of the reparation obligation:
- Cleaning and eradication of explosive remnants of war by ex-combatants
- Actions to search for disappeared persons, including reconstruction of camp areas to identify search polygons
- Symbolic actions
- Ex-combatants working with communities and victims to improve environmental areas in natural parks
- Education and ecotourism actions
Two Decades of Progress: Balancing Frustrations and Achievements
The implementation of reparations obligations by NSAGs and their members remains a highly contentious issue in Colombia. Some critics argue that the limited scope of reparations—particularly in terms of financial contributions—has resulted in more frustration than benefits for victims. In contrast, others adopt a more optimistic perspective, viewing the past twenty years as a period of learning and progress that should be understood within the context of the immense challenges associated with such an ambitious reparation project mandated by Colombian society. Given the high aspirations and expectations tied to a program of this complexity, the burden of fulfilling those expectations is particularly demanding.
Moreover, the reparative process is ongoing. Many victims have been waiting for years for their anticipated reparations to materialize, while judicial proceedings within the JEP remain in their early stages. The proposed restorative, reparative, and sanctioning measures are extensive. However, the reparation processes have proven lengthy, complex, and exhausting—not only for ex-combatants but also for victims and the officials overseeing these initiatives. Additionally, these intricate processes demand significant investments of time and scarce financial resources. Even if these procedures advance satisfactorily, the satisfaction of participants may be limited if complementary state programs, such as individual compensation, do not progress at an equally effective pace.
It is for these reasons that Herman’s book presents a welcome and timely contribution, not only for its foundational insights into international and comparative law but also for its relevance to discussions in Colombia. In this context, the book serves a dual purpose. First, it offers a judicious summary of the complexities of a lengthy process that has not been linear or incremental, and I believe it stands as one of the most structured presentations on the topic within the extensive literature on reparations in Colombia. Second, it contextualizes legal and policy debates within an international and comparative legal framework, providing a broader perspective on Colombian efforts and a more nuanced understanding of both progress and limitations.