Throughout Latin America, the idea of "justice" serves as the ultimate goal and rationale for a wide variety of actions and causes. In the Chilean Atacama Desert, residents have undertaken a prolonged struggle for their right to groundwater. Family members of bombing victims in Buenos Aires demand that the state provide justice for the attack. In Colombia, some victims of political violence have turned to the courts for resolution, while others reject the state's ability to fairly adjudicate their grievances and have constructed a non-state tribunal. In each of these examples, the protagonists seek one main thing: justice.
A Sense of Justice ethnographically explores the complex dynamics of justice production across Latin America. The chapters examine (in)justice as it is lived and imagined today and what it means for those who claim and regulate its parameters, including the Brazilian police force, the Permanent Peoples' Tribunal in Colombia, and the Argentine Supreme Court. Inextricable as "justice" is from inequality, violence, crime, and corruption, it emerges through memory, in space, and where ideals meet practical limitations. Ultimately, the authors show how understanding the dynamic processes of constructing justice is essential to creating cooperative rather than oppressive forms of law.
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About the Author
Sandra Brunnegger is Fellow and Lecturer at St. Edmund's College, Cambridge.
Karen Ann Faulk is Research Professor at the Colegio de México.
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A Sense of Justice
Legal Knowledge and Lived Experience in Latin America
By Sandra Brunnegger, Karen Ann Faulk
STANFORD UNIVERSITY PRESSCopyright © 2016 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
TRANSITIONAL JUSTICE, MEMORY, AND THE EMERGENCE OF LEGAL SUBJECTIVITIES IN COLOMBIA
Juan Pablo Vera Lugo
Modern and contemporary Colombian history has been shaped by internal conflict. The country has experienced different cycles of violence since the late 1940s: bipartisan violence during the 1950s, the rise of guerrillas in 1964 in the context of the Cold War, and the emergence of drug trafficking and paramilitary groups from the early 1980s until the present. Over the past three decades, paramilitaries, guerrillas, and the state security forces have been behind the disappearance of 27,000 civilians and have forcibly displaced more than 4.7 million Colombian peasants, members of the indigenous groups, and Afro-Colombian communities, who have lost approximately 16 million acres of land. In Colombia, most victims and targets of violence belong to the poorest strata, which comprise 49 percent of Colombia's population of 45 million; the various armies are made up of this large pool of individuals.
Many attempts have been made to achieve peace through amnesties and pardons with different armed groups that have rebelled against the state. However, a dramatic turn in this history took place between 2003 and 2005. Álvaro Uribe was the first Colombian president to initiate a peace process with paramilitary groups — an army born in the heart of the drug trafficking in the mid-1980s for the protection of illegal businesses and later used by landlords and regional political elites as private armies for their protection against guerrilla groups (Romero 2003; Ronderos 2014). Negotiations started in July 2003 and ended with the partial demobilization of the paramilitary forces in 2005. During the same year, Law 975, or the so-called Justice and Peace Law, was enacted, incorporating transitional justice mechanisms and emphasizing the disarmament, demobilization, and reintegration (DDR) of combatants. At the same time, and continuing from 2005 to 2010, the Colombian government neglected to address the rights of the victims and decidedly stigmatized social movements and organizations. Although this changed in 2011 with the enactment of the Victims Law and Land Restitution Act, this chapter focuses on the unexpected consequences of the Justice and Peace Law from 2005 to 2010. Interestingly, during this time a number of social agents, organizations, and institutions appropriated and mobilized a narrative of transitional justice and interpretations of its meaning, thereby challenging the normative purpose of the law and making Colombian victims visible before the international community and to the broader community of victims themselves. Surprisingly, this visibility remains limited within Colombian society as a whole because the majority of the nation's population remain indifferent to the lives and fates of their fellow citizens and refuse to investigate these disappearances.
A key dimension of transitional justice is encouraging perpetrators to confess to crimes and human rights violations in exchange for light sentences, with the goal of achieving truth and reparation for victims of violence. Transitional justice attempts to establish or reestablish first-generation human rights — and sometimes, as has been debated in Colombia, second-generation human rights — emphasizing retributive rather than restorative justice (Uprimny et al. 2006). However, transitional justice goes beyond this legal frame and is linked to a set of practices related to truth commissions, institutional reforms, reparation programs, human rights archives, memorialization, public policy, museums, amnesties, pardons, and criminal prosecutions (Hinton 2010; Payne 2008; Wilson 2001). Colombia's case is somewhat different, given that the transitional justice approach has been implemented during the ongoing internal conflict as a means to achieve peace. Even given the plethora of studies about Colombian violence, state violence has received scant scholarly attention (Corradi, Fagen, and Garretón Merino 1992; Taussig 1992). No attempts have been made to understand the mechanisms through which the Colombian state has reactualized and masked itself in order to preserve its legitimacy and perpetuity (Corrigan and Sayer 1985; Taussig 1992). In describing Colombian contemporary violence, Victoria Sanford (2004) has argued that in the context of paramilitary violence in the late 1980s and the 1990s, what initially appears to be simply a privatization of state violence is revealed in practice as state violence by proxy (Sanford 2004) — that is, state forces' support for and involvement with the creation and actions of the paramilitary groups.
And yet, Colombian institutions have remained legitimate for the majority of Colombian society despite the state's use of force against the civilian population. Accordingly, rather than considering Colombia as a failed state, this chapter argues that the Colombian state has been fairly successful in imposing its power and legitimacy. How did this happen? The answer is that transitional justice has worked as a renewed legal ideology for the state and has granted the state legitimacy as it implemented paramilitary demobilization using the framework of transitional justice. This idea calls attention to a cyclical and dynamic conception of legitimacy-making, where both state and nonstate actors appropriate and invest legal capital in asserting their own particular causes.
Traditionally, lawyers, policy makers, and social science scholars have been interested in exploring the application of international standards and the efficacy of transitional justice rulings. However, from an ethnographic point of view, this chapter highlights how both expert and nonexpert groups appropriate this particular juridical language (Merry 2006) and explores how it is socially transformed and contested. By exploring the work of one governmental institution and one non-governmental organization, we will see how discourses about the rights of the victims of political violence work as a site of appropriation of legal narratives to mediate specific social and political struggles. From 2008 to 2010, the members of the Grupo de Memoria Histórica (Historical Memory Center, or GMH) and the Movimiento Nacional de Víctimas de Crímenes de Estado (National Movement of State Crime Victims, or MOVICE) had a strong influence on the adoption and circulation of transitional justice meanings and practices. Victims of state violence became victim-activists in the process of articulating their victimhood. The rights to justice and memory can become powerful instruments of state victims' struggles for legitimacy, while remaining particular objects of aspiration and performance for the state itself. The victims of state actors discussed in this chapter represent the most extreme and paradoxical form of victimization because often they are unable to mobilize their claims within traditional institutional mechanisms.
BECOMING A VICTIM OF COLOMBIAN POLITICAL VIOLENCE
Although humanitarian programs that provided assistance to internally displaced people in Colombia existed before 2005, these programs were not part of a consistent and structured public policy. On the contrary, to be recognized as a victim was to put oneself in a marginal social position — one in which legal and citizenship guarantees are lacking. Victimhood in Colombia, then, has been the object of different forms of stigmatization because it entails what Kristeva (1982) and Panourgiá (2009) refer to as "abject subjectivities," a troubling anomaly to the sovereign order.
However, since the implementation of the law in 2005, the concept of being a victim has gained a different social significance, legitimacy, and meaning. Before that year, the main humanitarian concern of local institutions and international agencies was the forced internal displacement of the population (IDP). This shift is discernible through the news and broadcast media about Colombia's ongoing humanitarian crisis since 2005. The emergence of the concept of being a victim reframed within the transitional justice paradigm subsumed the internal displacement phenomena and other complex and varied forms of victimization.
In this new context, the concept of being a victim has become a realm of contestation. For some — mostly left wing — organizations, the concept of being a victim fails to acknowledge the heroic role of social groups and countless unknown people in the struggle for the democratization of Colombian society. For others, broadly defined as the right-wing rural elite and urban upper and middle classes, the concept of being a victim recasts the rights of people who have been deprived of them by subversive groups such as Fuerzas Armadas Revolucionarias de Colombia (Revolutionary Armed Forces of Colombia, or FARC). Some grassroots organizations and non-governmental organizations (NGOs) demand recognition of specific forms of victimization, such as in the case of ASFAMIPAZ (Asociación Colombiana de Familiares de Miembros de la Fuerza Pública Retenidos y Liberados por Grupos Guerrilleros), which is composed of the families of kidnapped police officers, or groups such as MOVICE and its claims against state violence. These groups mobilize their own victimization in demanding justice and the right to know what has happened to their loved ones.
Many social organizations exist today that demand justice, truth, and redress for victims of state crimes and paramilitary groups. From 2008 to 2010, the number of social, academic, and political organizations formed around the concept of transitional justice increased dramatically. Practices based on memories — in personal archives, local museums, and public acts — and reports by people who consider themselves victims also increased. This new class of victims demanded basic citizenship rights — the rights to life and education — as well as the rights to know the truth and to justice and redress.
Victims' mobilization of their experiences and the intersection between this and the role the state forces play in their victimization produce a conjuncture that includes both the right not to be harmed and the rights derived from any harm they have incurred. This is very evident and further complicated in Colombia, where many victims and victims' relatives have endured recurring experiences of state actors' violence. From the victims' perspective, the image of the state is a contradictory one: the state possesses the power to take away everything, but, paradoxically for victims, the state is the only entity that can, and should, enact its restitution. The testimonials of survivors who have been victims of state actors or state actors by proxy provide a rich source of state representations as corrupt and against society, but they also preserve the idea that the state must do justice and recognize its weaknesses. Yet, it is the law that, as discursive formation and state language, also empowers the survivors of political violence when it comes to claiming their rights through transitional justice, human rights, or constitutional rights discourse.
In this context, state victims and victim-activists have to struggle not only against the constant threat to their lives but, fundamentally, against stigmatization, which produces both political marginalization and social ostracism. One of the most frequent claims of victims of state agents is what they call la lucha por la dignidad (struggle for their dignity). Dignity, which embodies the very sense of restituted self for victims, is a central aspect of the agentive mobilization of survivors and their relatives and advocates in Colombia, and it plays a central role in the emotional mobilization of victimhood. Incorporating dignity into the frame of rights discourses is calling for the rehumanization of the victims of state violence and also for a particular sense of justice. For victims and survivors, dignity requires that the state acknowledge their suffering and the harm it has done to them. Dignity is also related to truth and the restitution of their buen nombre (good name). This means the historical recognition of state crimes and the active and successful application of an acceptable form of justice.
The articulation and understanding of victims' and survivors' histories and organizations is complicated because they occur within the struggle for historical representation between survivors and perpetrators (Tate 2007). One of the main factors related to the how victims are rendered invisible culturally and socially has been the systematic process of naming, whereby the state relegates these particular social actors to the boundaries of political illegitimacy through a discourse of criminalization or illegality (Panourgiá 2009; Scott 1998). The struggle over the representation of victims and survivors has been shaped by the state criminalization of political opposition and illegal groups supposedly acting beyond state reach. In this sense, the governmental interpretation of violence has become the representational space where meanings are contested but also a specific place of state making (Desmond and Goldstein 2010).
The collapse of peace talks between the administration of Andrés Pastrana (1998–2002) and the FARC guerrillas in the late 1990s led to the loss of social and political credibility of the guerrillas' will to peace among the Colombian population and general public opinion. Eventually, the failure of the peace talks led to the moral and political justification of state persecution of the country's grassroots and social organizations. The public discourse also changed after September 11, 2001, to reflect the war on terror. Since then, Colombian counterinsurgency efforts and state violence increased a concentration on Colombian social, economic, and security policies as the main pillars of Colombian development with the implementation of "Plan Colombia," a Colombian and U.S. military and diplomatic US$7.5 billion (Transnational Institute 2001) initiative aimed at combating Colombian drug cartels and guerrilla groups (Ramírez 2011). The polarization of Colombian society during this period sought also to increase the dissemination of international and humanitarian discourses, intensifying the social representations of "victims" associated with Colombian conflict and rooted in a historical struggle over the meaning and the legitimacy of their political recognition.
At this time, many targets of violence were affiliated with grassroots organizations, opposition groups, local leaders, and unions, as well as local businesspeople, politicians, and peasants suspected of collaborating with subversive groups, paramilitary groups, or state armed forces. In the public discourse, state agents usually justify violence against guerrilla groups and those designated as terrorists and amigos del terrorismo (friends of terrorism). In the case of victims of state actors, some survivors, victims' relatives, and civic organizations challenge this representation by presenting themselves as victims of state crimes. Confronted with the situation of being associated with left-wing groups that are allegedly allied with guerrillas, these individuals and groups insisted that the state must recognize their suffering. But how are these new transnational legal narratives transforming and distinguishing the victim as deserving of legitimacy and political justification? How are these postconflict legal discourses transforming the social and political spaces in which victims and survivors have traditionally been positioned by the state and represented by society, while the conflict endures?
TRANSITIONAL JUSTICE APPROPRIATIONS
When individuals try to identify themselves as victim-activists in the context of transitional justice in Colombia, discursive mobilization challenges their position in the social milieu. Transitional justice and human rights can be understood as resources or forms of social capital where appropriation is mediated through the work of human rights activists and governmental and nongovernmental institutions. This mediation is produced through different means that usually end when the harm inflicted upon survivors and victims' relatives is recognized as something beyond a criminal act. Survivors become "victims" not just through their engagement with the realm of law but also through the actual resignification enacted by the use of transitional justice discourse.
Using a discourse of transitional justice started to frame the way in which some victim-activists thought about their experiences. This process is not the same for everyone, and it takes place in different contexts and organizations. We will focus on GMH and MOVICE to demonstrate how this resignification is made possible through two different practices and ends.
Excerpted from A Sense of Justice by Sandra Brunnegger, Karen Ann Faulk. Copyright © 2016 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS.
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Table of Contents
Introduction: Making Sense of Justice Karen Ann Faulk Sandra Brunnegger 1
Part 1 Memory and Justice Under Construction
Chapter 1 Transitional Justice, Memory, and the Emergence of Legal Subjectivities in Colombia Juan Pablo Vera Lugo 25
Chapter 2 Pursuing Justice in Jewish Buenos Aires Karen Ann Faulk 50
Part 2 The Spaces of Legality
Chapter 3 Justice, Rights, and Discretionary Space in Brazilian Policing Graham Denyer Willis 79
Chapter 4 Imaginaries of Judicial Practice among Legal Experts in Argentina Felicia Barrera 99
Part 3 Differing Scales of Justice
Chapter 5 The Craft of Justice-Making through the Permanent Peoples' Tribunal in Colombia Sandra Brunnegger 123
Chapter 6 On Justice, Insecurity, and the Right to the City in Brazil's Oldest Metropolis Marta Magalhães Wallace 147
Chapter 7 Water Justice, Mining, and the Fetish Form of Law in the Atacama Desert Alonso Barros 170
Conclusion: Justice at the Limits of Law Mark Goodale 203