Book Symposium “Reparations by Non-State Armed Groups: From Conflict to Repair in Colombia and Beyond”: Response

About the author(s):

Olivia Herman is a practitioner and researcher in the fields of international law and transitional justice. She holds a PhD in International Law from the KU Leuven (Belgium) and has worked across civil society, academia, and international organisations.

I am truly grateful to the contributors to this symposium for taking the time to engage with my book on Reparations by Non-State Armed Groups under International Law. It was a real pleasure reading their insightful comments and thoughts on the research. The different contributions offer interesting reflections on related or broader issues surrounding the topic at hand and point to issues for further exploration. In this closing post, I will provide some brief responses to the issues raised with the aim of further deepening the discussion. Ultimately, with the book and this kind of expert engagement, I hope to stimulate further research and developments with respect to the role of non-state armed groups in reparative justice for victims of armed conflict.

Laura Íñigo Álvarez focuses in her post on my proposal to establish a sui generis regime of international responsibility for non-state armed groups, as developed in Chapter 3 of the book. She correctly points out that, although this legal exercise seeks to resolve what the character of such a future regime should be, there are also other forms of accountability possible. Mechanisms in the form of, for example, commissions of inquiry, fact-finding missions, and truth commissions have scrutinised the conduct of armed groups and their members against international law. While they have at times recognised the responsibility of such groups as collective entities, this accountability practice lacks a uniform legal framework to make such a determination. This reality contradicts the demands of a rule of law-based international order, which partly explains why it is important to clarify this controversial notion. 

In her post, Íñigo Álvarez draws our attention to the current debates regarding the collective (criminal) responsibility of companies as possible legal entities. These debates are not marked by the same degree of controversy in comparison to those about non-state armed groups. Indeed, as I write in the book, armed groups’ “defiant nature towards states makes them into one of the most controversial non-state actors on the international stage” (p. 7). The concern of states to afford these groups some form of legitimacy cannot be ignored when examining the international responsibility of non-state armed groups, and it may be even stronger when it comes to the question of reparation.

As with any book project, I had to make decisions about the scope of the research. Katharine Fortin’s post picks up on several issues that provide an opportunity for clarification and further exploration. Her probing comments focus on the proposed cascading regime of responsibility for reparation, outlined in Chapter 4 and further tested in Part 3 of the book. As part of this cascading regime, I argue that a responsible non-state armed group should bear the primary duty to make reparation while the state should step in to the extent that the group is unable or unwilling to provide full reparation. Although there is currently no international forum where victims can claim reparations from a responsible group, this scheme could still find present-day application in the context of, for example, transitional justice mechanisms, investigative bodies, or peace negotiations.

In response to Fortin, it is important to clarify that my proposal for a cascading regime does not imply that a non-state armed group could never be able to fulfil its reparation duty. Instead, the proposed regime responds to the reality that reparations in (post-)conflict situations usually seek to remedy a complex set of harms and needs, which can easily exceed the capacity of a responsible group alone. We can observe this in the reparations process with the FARC-EP, which, despite being a highly organised and wealthy armed group, took only a contributing role in repairing the vast scale of harm inflicted on the conflict’s numerous victims. This example affirms the importance of developing a legal framework that can respond to these realities and ultimately be effective in ensuring redress in practice. Although the book identifies some of the legal and other bases on which states’ subsidiary responsibility could be based (see pp. 90, 142), an in-depth examination is left to future research, including of Article 16 of the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation which appears based on social and human solidarity.

Fortin rightly notes that while the book addresses extensively the issue of post-conflict reparations, it deals only in passing with the question of when a non-international armed conflict (NIAC) exactly ends. This technical issue is of practical and legal importance, for example to determine when a non-state armed group ceases to exist as a matter of international law. Although legal scholars disagree on the test for making this determination, I point out in the book that international humanitarian law can continue to apply even if the application requirements of organisation and intensity are no longer met. An additional factual assessment appears to be paramount (see for example). However, it is clear that the complete dissolution of an armed group by military defeat or otherwise would end the armed conflict as such. This issue was also addressed as part of the peace process with the FARC-EP. Interestingly, the delivery of the FARC-EP’s inventory of assets to be used for reparations marked the end of the group’s disarmament and of all conflict-related activities and conduct (p. 219).

Another interesting question raised by Fortin is whether the legal personality of a non-state armed group could switch from international to domestic so that it can extend beyond the end of a NIAC. I grappled with similar thoughts when researching the complex issue of post-conflict reparations. While I argue in the book that a successor entity – such as a political party – should respond to its predecessor’s past wrongdoings in certain circumstances, I found little support in state practice and encountered some challenges in the FARC-EP case that may complicate such an approach in practice, such as the fragmentation of the successor party (see pp. 112-113, 230, 258). 

Finally, I was eager to read Nelson Camilo Sánchez León’s post given his expertise on the complex reparation landscape in Colombia and the additional insights he gathered while writing it. His insightful contribution focuses on Part 3 of the book, which analyses and draws insights from the operationalisation of reparations by non-state armed groups in Colombia. He provides a broader political and legal context to this discussion, including by describing the underlying political and practical realities that have contributed to shaping the institutional framework regarding reparations for victims of armed violence in Colombia. I find his discussion of the evolving justifications for the recognition of armed groups’ duty to provide reparation in Colombia particularly interesting and helpful. He identifies at least three justifications: the narrative of responsibility, financial resources, and significance for victims and justice. They not only help frame our understanding of reparation and non-state armed groups within the Colombian situation but also in other contexts and broader discourse.

Sánchez explains how Colombia’s experiences with reparations by armed groups within subsequent transitional justice processes have been shaped by a “complex interplay between legal principles, political realities, and the pursuit of meaningful justice for victims”. As we see, for example, in the Justice and Peace Law process, the recognition of the reparation obligation of the paramilitary groups involved initially stemmed from a desire to deny the responsibility of the state and was simultaneously reinforced by an active justice movement led by civil society in the country. An important framework for understanding the reparations process is that it has “not been linear or incremental”, as Sánchez righty notes. Instead, it can be characterised as a “journey” of about 20 years, providing valuable lessons and approaches to the issue. While the book examines the subject of reparations by non-state armed groups through an international legal lens, a key component of the research on Colombia involved conducting in-country fieldwork and particularly interviews with a diverse range of stakeholders. By integrating perspectives beyond the law into the book, my aim has been to deepen our understanding of responsibility and reparation when dealing with non-state armed groups.

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