Law as a social practice and Indigenous Peoples as new actors in the Transitional Justice process in Colombia (2005-2016)
by Mónica N. Acosta García*
Paper to be presented at the Workshop for Inter-disciplinary Researchers “Mobilization of Law in Pluralistic Society,” 19-20 May 2017, Evangelische Hochschule Berlin (Protestant University of Applied Sciences, Berlin)
Due to the Justice and Peace process in 2005 and the actual scenario of peace talks between the government and the Revolutionary Armed Forces of Colombia -FARC, Colombia has a structured and well-defined normative ‘institutionalization’ about Transitional Justice -TJ. However, the active participation of Indigenous Peoples -IP is missing in this political and legal scenario, therefore, I will discuss how a non-state actor -the national indigenous organization Organizacion Nacional Indígena de Colombia ONIC- have engaged in the TJ in Colombia during the last 10 years. Thus, the starting point is the Colombian TJ, which is a social process of interactions involving diverse types of agents (State actors, NGOs, international organizations, indigenous organizations, lawyers, etc.) and multiple levels of law (local/national/global/transnational). This implies that non-state actors such as Indigenous Peoples-IP have engaged in a TJ ‘from below’ through different uses of the discourse. It will be argued that, as Lemaitre states, indigenous struggles are characterized by an ambivalent use of law. An ambivalence that is, “on the one hand, between the conviction that the Law is often a form of oppression and an instrument, and on the other hand, an emotional investment in the symbolism of the Law in its forms and arguments even when they exceed their usefulness practice” (2009: 311). Indeed, the ONIC is the only organization within the four national organizations (CIT, AICO and OPIAC) that has led the struggles on the protection of collective rights in the current political process. Thus, ONIC creates new legal/political strategies to empower them politically not only in the context of trials but also in the context of TJ, and to receive the protection of rights to autonomy and land.
There is a theoretical and analytical gap within the debate on TJ and Indigenous Peoples, and a particular lack of knowledge when it comes to the analyses of the relationship between TJ initiatives and identity conflicts and identity-based grievances that form a significant part of post-conflict and post-authoritarian contexts (Arthur, 2011). Hence this complexity of analysis is at the centre of this paper. Theoretically, the case of study is analysed through a socio-legal approach and the perspectives of Law and Globalization (Twining; Santos), that articulates the sociology of social movements (Tarrow; Keck &Sikkink), and of the diffusion and uses of law (Watson; Twining; Bonilla; Merry; Lemaitre), in which the analysis highlights the conditions for the emergence, uses and/or appropriation of the legal discourse of TJ through the indigenous social movement. Based on this and to be representative of the process that is studied, the qualitative approach of ethnography and the method of non-participant observation in some scenarios have been used, along with content analysis of laws, policy papers, NGOs and indigenous organizations reports.
* Mónica N. Acosta García is a Lawyer and an Internationalist with a Master of Arts (MA) in Sociology of Law, Magna Cum Laude at at Oñati International Institute for the Sociology of Law and Universidad del País Vasco. A PhD candidate in Law and Sociology of Law at Universidad del Rosario and Universidad del Pais Vasco. A Junior Researcher and a Lecturer of the educational program “Intercultural School of Indigenous Diplomacy-Escuela Intercultural de Diplomacia Indigena” and the Faculty of Law at Universidad del Rosario. Experience in action-research, qualitative and interdisciplinary research with Indigenous Peoples.