Defining Victimhood: The Political Construction of a “Victim” Category in Colombia’s Congress, 2007–2011

Abstract

Scholars of state classification practices have long interrogated how official legal categories are constructed. This paper analyzes the construction of “victimhood” in Colombia as a feat that required negotiation among international human rights organizations, local civil society actors, and politicians across the partisan spectrum. The Victims’ Law of 2011, which sought to provide widespread reparations to victims of the civil conflict, originated from the concerns of the human rights community, yet the deliberation process leading up to the law’s passage reveals the extent to which elite historical narratives of the conflict unduly narrowed the universe of eligible victims. Using archival evidence from congressional debates from 2007 to 2011, this paper argues that the broad conception of victimhood originally inherited from United Nations guidelines came to be constrained by disproportionate influence from politicians’ personal understandings of conflict history, shaped by anecdote and the selective use of historical evidence. These rationales interacted with budgetary constraints to ultimately restrict the victim category according to negotiated temporal boundaries of the conflict.

On 11 June 2011, Colombian President Juan Manuel Santos stepped onto a public stage in the national capital of Bogotá alongside UN Secretary General Ban Ki-moon to ceremoniously ratify the historic Law of Victims and Land Restitution. Ban Ki-moon’s presence as a guest of honor at the signing event symbolized to many the unprecedented involvement of human rights actors in the facilitation of this legislative project, which promised reparations in the form of monetary aid and the restoration of property rights to millions of eligible victims of the country’s civil conflict. ¹ The ceremony celebrated what appeared to be a promising prototype of comprehensive, national-level legislation that could embrace the guidelines of international human rights organizations and the demands of local victim advocates in response to the widespread human rights violations associated with the conflict.

Obscured by the public fanfare of the law’s ratification were nearly four years of congressional deliberations that had led up to this date, during which the legal category of “victim” was negotiated and consecrated by voting members of Congress. While the victim definition was influenced initially by international human rights organizations and local civil society actors, it was ultimately determined by politicians assigning their own symbolic and anecdotal rationales to justify a scope of victim eligibility that was steadily reduced as debates progressed. Boundaries were placed around the temporal identity of victims such that, in the end, victim status was granted only to those who had suffered human rights violations between 1 January 1985 and 10 June 2021. This meant that only a particular subset of Colombians who experienced physical, psychological, and economic harm throughout the civil conflict that lasted more than five decades would be recognized as victims. Materially, this has deprived the others of due monetary reparations, land restitution, and other social service provisions allocated to the legally recognized victim population. These citizens were also denied the symbolic resources, in government and popular discourse, that legal victim status would bring.

Victim identification in Colombia has been particularly complex and contested due to the duration of the country’s civil conflict and the comingling of numerous forms of violence and diverse perpetrators that have included state, paramilitary, and guerrilla forces. Not only does the production of a singular victim category pose challenges of accuracy and objectivity, but there are considerable material and symbolic stakes for the Colombian state regarding who is eligible for the status and associated reparations. As Winifred Tate (2007) summarized in her book on human rights activism in Colombia, the multiple frames of violence and victimhood there can be credited to the multiple institutional interests at stake, ranging from international and local human rights entities to the state itself. State self-interest in the legal identification of victims is particularly relevant in the Colombian case since national security forces and paramilitary groups with deep political ties are among the perpetrators of human rights violations, rendering the state as first and foremost a producer of victims. ²

In light of the state’s role in the violence, the appearance of transparency and objectivity in naming victims was a priority for the country’s fragile democratic institutions, which have been in the international human rights spotlight since the 1990s. As I will explain, actors from the realms of international human rights, local advocacy, and national politics all sought to influence the scope of victimhood in the 2011 Victims’ Law. I argue that, though the legislative initiative was originally rooted in human rights discourse, the insulated structure of congressional debates meant that technical knowledge from human rights experts and advocates was gradually replaced with the personal memories of politicians in the form of what I call “elite historical narratives.”

Negotiations surrounding the temporal dimension of the victim category were enabled in part by the historical ambiguity of the Colombian conflict itself, whose lower and upper bounds were both contested during these legislative discussions. The origins of the conflict are sometimes dated back to the 1948 start of La Violencia (the violence), a prolonged episode of partisan violence that plagued the Colombian countryside. Others portray the conflict as having developed much later, in the 1960s, when guerrilla groups like the Revolutionary Armed Forces of Colombia (FARC) developed more sophisticated organizational structures (Pécaut 2008). Still other periodizations aim for somewhere in between, depending on the narrative task at hand. For example, the state-commissioned Historical Memory Group, composed of Colombian social scientists and historians, used 1958 as the initial date in counting deaths caused by the conflict (Grupo Memoria Histórica [GMH] 2013). From a more critical perspective, some experts like anthropologist Alejandro Castillejo-Cuéllar (2014) have analyzed the conflict as a continuation of a broader picture of violence rooted in the country’s colonial past and other temporalities that evade easy definition.

Beyond these origin stories, different periodizations also rely upon different understandings of the central sites and evolutions of violence, since sustained combat in rural areas has unfolded along a much longer timeline than the instances of bombings and political assassinations in urban centers like Bogotá, which spiked largely in the 1980s and 1990s. Some scholars, like Abbey Steele (2017), clearly distinguish between the earlier stages of violence associated with La Violencia and a more distinctively contemporary civil war, the start of which she dates to 1986 and the failure of the Betancur administration’s attempt at peace talks.

There are also indecisive ideas about the conflict’s end point, and indeed, during the Victims’ Law discussions from 2007–2011 both guerrilla and paramilitary violence was ongoing and new criminal groups were proliferating. As Castillejo-Cuéllar (2014) and others point out, Colombia’s attempts at transitional justice, including the Victims’ Law, have occurred “in the middle of conflict” rather than after its end. These ambiguities regarding conflict history meant that when members of Congress set about adapting a victim definition from UN guidelines, they had an open playing field for constructing their own various conflict histories, especially since the UN guidelines did not account for a situation where the very origins and end of a conflict were contested (Sánchez 2009).

The resulting boundaries that set 1 January 1985 as the earliest date for which victims could claim human rights violations and 10 June 2021 as the latest date were borne out of political compromise that valued elite historical narratives. These elite recollections were shaped less by interventions of civil society actors who favored more systematic historical claims than by elites’ interpretations of limited violent episodes in their own geographic and social purviews. As Vered Vinitzky-Seroussi (2002: 36) points out, the “time structures” inherent in narratives surrounding contested pasts help to construct a context that has real ramifications for present political agendas. As such, infusing a victim category with a fixed temporal range provides the basis upon which more explicit partisan claims can be made in the present and future.

I will begin with a discussion of post-conflict victim identification mechanisms both internationally and in Colombian history prior to 2007. I then situate the Colombian case at the intersection of the sociological literature on symbolic state processes of classification and the transitional justice literature on victim category construction. My findings draw from the complete archive of congressional debates of 2007–2011 pertaining to the Victims’ Law. I explain how the temporal boundaries drawn around the final victim category were the product of elite historical narratives negotiated against a backdrop of budgetary worries and ideological pressure from a conservative administration that was openly hostile to human rights actors. I show how state classification processes related to victimhood still promote exclusionary outcomes through the negotiation of boundaries like event periodization, which can seem less immediately polarizing than criteria like the ethnic or partisan identities of victims.

Mechanisms of Victim Classification in Post-Conflict Contexts

Victim classification, construed as a large-scale, organized activity with multiple administrative and symbolic aims, often occurs under the broader umbrella of transitional justice processes. Transitional justice encompasses the policies and programs employed in post-conflict contexts to facilitate either (1) regime transition following civil conflict, or, as in the Colombian case, (2) the social, cultural, and secondary political transitions between eras of conflict and peace (Chapman and Ball 2001; Hayner 2001; Evans 2012). Anthropologist Kimberly Theidon theorizes transitional justice mechanisms as a form of “ritual purification” that “make a break with the past and mark the beginning of a new moral community” (2007: 88). In a more critical sense, these mechanisms aim to “sacramentalize violence into a useful creation myth” that can benefit nationalist agendas (Grandin and Klubock 2007: 3). This storytelling process often encompasses the tasks of identifying victims and perpetrators in legal, political, and cultural venues. Establishing coherent boundaries around victimhood is an integral part of both the material and symbolic aims of a restorative transitional justice program, especially given that victimhood, on its most fundamental level, is symptomatic of “broken order” (Gatti 2017: 77).

Regionally, Latin American governments have often turned to truth commissions as a model for identifying and classifying victims of violent national pasts. Unlike Colombia’s version of victim classification in the Victims’ Law of 2011, which established novel bureaucratic processes distinct from the framework of a truth commission, countries like Guatemala, El Salvador, Argentina, and Chile sought a comprehensive historical account of violence through establishing truth commissions. These processes engaged with a diverse set of experts, including social scientists, clergy members, lawyers, human rights practitioners, and politicians. But while the goals of these truth commissions include producing a comprehensive, structural analysis of past violence, in practice they are often constrained by limited forensic or juridical approaches to narrating past violence (Chapman and Ball 2001; Grandin and Klubock 2007). Emilio Crenzel (2012) demonstrates that in the case of Argentina’s National Commission on the Disappearance of Persons (1983–1984) the final historical report regarding disappearances emerged from a relatively haphazard project of collecting individual testimonies and tips for investigations. This departed from earlier designs for the commission that strove for more uniformity, with President Alfonsín first commissioning a group of philosophers to construct a formal definition of “perpetrator” to guide the investigation. The final outcome, while still a model for future truth commissions in the region, was an aggregation of individual cases meant to represent a broader structural reality. In the context of Guatemala’s Historical Clarification Commission (1997–1999), Elizabeth Oglesby (2007) similarly underscores what she calls the “epistemological tensions” of reconciling both a juridical framing of violence and richer historical understandings in response to the Commission’s broad mandate to investigate the “causes and origins” of the armed conflict. Beyond Latin America, the Truth and Reconciliation Commission in South Africa (1996–2003) also exhibited challenges that emerged from prioritizing the aggregate truth of individual victim testimonies and depositions in a way that unintentionally obscured the more macro “historical interrelations” between apartheid and preceding forms of segregation, which would be critical to any structural account of violence (Castillejo-Cuéllar 2007).

As provided for in Colombia’s Law of Justice and Peace in 2005, the National Commission for Reconciliation and Reparations (CNRR) was an attempt to unify multiple forms of truth, both historical and judicial (Pizarro Leongómez 2019). While not formally a truth commission, the CNRR functioned similarly as a national body composed of twelve commissioners from across government, civil society, and victim advocacy sectors charged with collecting victim testimonies and delivering a final report to the government (Ambos 2010). Eduardo Pizarro Leongómez (2019), who presided over the CNRR from 2005–2009, also contextualizes its work as unique in the realm of transitional justice, since the historical reports resulting from the compiled victim narratives were given the authority to inform later judicial decisions. Interestingly, the CNRR was only established after pushback from international and local NGOs that criticized the initial formulation of the Law of Justice and Peace as prioritizing the voices of demobilized combatants—perpetrators—over their victims (Evans 2012: 215).

The court-centered nature of the Law of Justice and Peace (2005), apart from and prior to the CNRR, meant that victims were identified only as a byproduct of the depositions delivered by perpetrators. That is, a victim was only named and recognized as a victim when their perpetrator admitted to committing violence against them in the context of a formal deposition in court. ³ Because of the uneven nature of these testimonies, Mauricio García Durán (2014: 15) refers to them as a form of “partial truth” in lieu of a more comprehensive truth that other mechanisms, like a truth commission, could bring forth. More generally, Savelsberg and Brehm (2015) note the limitations of the courtroom, which was center stage of the Justice and Peace processes, in eliciting comprehensive truth about civil conflict due to restricted “evidentiary standards” that elide what could be evaluated through a historical or social scientific lens. The eventual investigative work of the CNRR, in response to initial deficiencies of the Law of Justice and Peace, succeeded in many respects in establishing an enduring emphasis on academic investigation, eventually evolving into the Historical Memory Group and then the National Center for Historical Memory, which remains active today. ⁴ Yet, as the congressional debates of the Victims’ Law will reveal, the work of the CNRR was not the final or most influential voice in the construction of the victim category through this new legislative process.

The 2005 Law of Justice and Peace and the CNRR was not the first time the topic of conflict victimhood had surfaced in political consciousness in Colombia. Naming victims has been an important task in the face of violence throughout the country’s history, dating back to the aftermath of the Bogotazo, a series of riots that broke out in Bogotá’s streets following the assassination of populist leader and presidential candidate Jorge Eliécer Gaitán in April 1948. A commission was tasked with identifying the property owners and merchants who were “victimized” by the violence (Espinosa Moreno 2019). The word used in that case—and more generally throughout the 1940s and 1950s as overlapping forms of partisan violence spread across the country—was the Spanish damnificado (literally “damaged one”) rather than víctima, or victim (Rodríguez Idárraga 2017). Historian Nicolás Idárraga points out that the identification of “damnificados” was more akin to assessing the damage of a “natural disaster” rather than acknowledging the political context of harm that the contemporary notion of “victim” involves (ibid.: 10). Later, in the late 1990s and early 2000s, a victim concept emerged in Colombia with the discussion of forced displacement and how to define a “desplazado,” or “displaced person,” in the context of legislation and court rulings (Dávila 2009).

The Victims’ Law of 2011 was unique in that it sought to construct a definition of “victim” more comprehensive than in any of the Colombian state’s previous attempts. It went further than simply identifying “damnificados” and “desplazados,” terms of more limited scope, but it also fell short of the type of synthesizing, historical work that truth commissions like the CNRR were mandated to generate. The Victims’ Law also did not construct or rely upon a strictly juridical understanding of victimhood, since the category was not emerging from the courts or relying upon individual testimonies. Instead, the process of victimhood construction in the Victims’ Law carried its own epistemological puzzles as members of Congress elevated certain voices while silencing others in the context of legislative debates. The process of the debates enabled the elite historical narratives of politicians to weigh most consequentially in drawing boundaries, particularly temporal ones, around a category of victim.

Constructing a Victim Category: State Symbolic Power and the Process of Classification

Discussions around a victim category in transitional justice settings speak to a broader literature on how states construct social categories. Sociologists and others have long interrogated the construction of social categories such as race, gender, and nationality. How particularly states name, categorize, and classify different populations has been an enduring object of sociological study over the past two decades (Bourdieu 1991; Scott 1998; Torpey 2000; Kertzer and Arel 2002; Loveman 2005; 2009; 2014; Emigh, Riley, and Ahmed 2016; Kim 2016). According to this body of work, state classification schemes of all types may function to display scientific prowess domestically and also externally to international actors (Loveman 2014), increase the legibility of citizens to the state (Scott 1998), make claims about the country’s future progress or trajectory (Loveman 2009), or control the movement of people within state borders (Torpey 2000; Kim 2016). With the case of a victim category in Colombia, scholars have expounded on the various subjectivities that “victimhood” produces in relation to the state, including the victim as an organized political actor (Rettberg 2015), as a voter (Acosta 2021), and as an economic actor (Vallejo Pedraza 2019). Mariana Delgado Barón (2015) underscores that it is an act of state power that leverages legal categories like “victim” in the Victims’ Law to produce and reproduce useful subjectivities.

Sociological understandings of states’ symbolic power suggest that the construction of social categories often requires states to portray them as naturally occurring rather than overtly political or contingent in their origins. As Mara Loveman observes, states are able to consolidate symbolic power through “the ability to make appear natural, inevitable, and thus apolitical that which is the product of historical struggle” (2005: 1655). Thus, scholars have recently sought to unearth the specific struggles that undergird the allocation of seemingly “natural” or inevitable social labels. While some sociologists and other scholars have paid close attention to the bureaucratic sphere as the primary site of struggle and contradiction in processes of state classification and naming (Scott 1998; Shuman and Bohmer 2004; Kim 2011; Loveman 2014; Sweet 2019), transitional justice scholars are particularly equipped to identify the political struggles involved in naming victims (and perpetrators) across many “hands of the state” ⁵ in the judicial and legislative processes that compose the constellation of post-conflict policy.

Existing work that emphasizes the political conflicts in post-conflict victim-naming succeeds in outlining the symbolic and material stakes of the category construction but pays relatively less attention to how, processually, the particular theaters of this decision-making—judicial, legislative, or bureaucratic—interact with this politicization to facilitate or constrain certain outcomes. Luke Moffett (2016) points out the differences in partisan priorities of victim classification when it occurs on a national stage versus the international one, as national governments opt toward superimposing levels of blame and innocence onto a victim category according to political status. For example, states may distinguish categories of “victim” from “victim-perpetrators,” such as insurgents injured in combat with state forces, whereas the international arena of human rights and humanitarian law may acknowledge only one broader category of victim. This difference in categorization across national and international levels exemplifies the way that the stakes of the victim definition change across different arenas of decision-making. Erica Bouris’ analysis of “complex political victims” considers what she calls the “ideal victim,” an identity that state parties in power can leverage to assess the “righteousness” of each of the conflict groups (2007: 32). McEvoy and McConnachie broadly acknowledge that “victims are (to varying degrees) instrumentalized in the pursuit of larger political and social goals,” and that we can see this varies according to the institutional level where victim identification occurs (2012: 528).

Rather than viewing the politicization of victim categories as something that is only strategically coordinated by actors making deliberate decisions, we can combine insights from the scholarship on transitional justice with those of sociological classification literature to account for the contingent and at times ideologically incoherent ways in which particular arenas of decision-making facilitate various outcomes. As Stanley Cohen (2001: 12) points out, misrepresentations and even the denial of violence by the state are not always the result of a “planned campaign,” but can emerge from the gradual, collective mismanagement or omission of knowledge about such violence. This collective mismanagement is something that occurs on a state institutional level. Furthermore, the actual organizational context of the site of victim category construction, congressional debates, for example, can undermine the ideological coherence of moving forward with any one prioritized meaning of victimhood even if it has political aims. For instance, Francesca Polletta (2003) argues that congressional deliberations addressing conflict-laden national histories showcase fluctuating opinions over time. This occurs as debates unfold over several days and contradictory opinions emerge within the same parties and even individual politicians based on their multiple overlapping constituencies, identities, and experiences.

In the case of Colombia’s Victims’ Law, the arena of deliberation, the Colombian Congress, determined the parameters of how political and partisan struggles played out. Additionally, individual members involved in this congressional process, beyond their structural positions as politicians or partisans, had complex identities that impacted the debates’ outcomes. I will demonstrate how the insulated structure of congressional debates—only opened for “audiencias públicas” (public hearings) in the beginning stages of the legislative process—empowered elite historical narratives. The shapes of these narratives are determined by more than the partisan identity of politicians and engage with their own proximity to the conflict as witnesses or sometimes even as victims.

“Victim” Construction in the Colombian Congress, 2007–2011 ⁶

The legislative process leading up to the Victims’ Law’s ratification in 2011 was initiated by the human rights community in Colombia—comprised of academics, NGOs, and victim advocates—and sympathetic senators. Experts from civil society were involved in public hearings that took place at the start of each critical period in the law’s development (2007 and 2010), and politicians incorporated various forms of their data and recommendations into their arguments as the debates progressed. Importantly, the victim definition adopted in the law’s first draft, in 2007, was drawn directly from a UN guidelines document adopted the year before in the UN General Assembly. Yet, as the debates proceeded beyond 2009, financial constraints worked in tandem with political justifications and the pre-existing ideological biases of Álvaro Uribe’s government to limit the initially wide interpretation of victimhood, which, with its universal scope, did not regard the timeline of violence as a contested dimension of victim eligibility. Voting members of Congress bypassed many of the historical assertions of NGO leaders, who represented a wider breadth of knowledge about the conflict. They indirectly relegated their inputs to being contextual information rather than knowledge directly applicable in technical deliberations of the temporal boundaries to be drawn. They instead constructed arguments based on their own personal narrations of meaningful events, which resulted in distinctly “elite” historical narratives. These narratives were more important in determining the specific limits of 1 January 1985 and 10 June 2021 than were either formal human rights expertise or political fears of financial feasibility.

The Road to Legislation: Human Rights Activity and Discourse in Uribe’s Colombia

The first prototype of the Victims’ Law introduced in the Senate on 5 October 2007 was the result of coordinated efforts by Liberal Party Senator Juan Fernando Cristo—who self-identified as a victim of the conflict due to his father’s assassination by National Liberation Army (ELN) guerrillas in 1997—and the NGO Visible Victims, along with other local and international human rights advocates including the United Nations Development Program (Cristo 2012; Mora-Gámez 2016). The initial motivation for this bill was frustration over previous attempts at transitional justice legislation, specifically the Law of Justice and Peace from 2005. Those were seen as having been too focused on perpetrators and not enough on victims, which relegated the latter to a “secondary plane” beneath the perpetrators, whose stories monopolized political and public attention. ⁷ As Cristo later recounted in his memoir The War for the Victims, “The government [Uribe’s administration] saw [the conflict] in terms of the distinct actors [or perpetrators] of the war, legal or illegal, while this legislative proposal precisely sought to change that vision in a radical way, to see the conflict only with the lens of the victims that had suffered it” (2012: 75–76).

The coalition’s first action step prior to the bill’s formal debut in the Senate was to organize a public hearing in Congress, which they referred to as a “Day of Solidarity.” It featured testimonies of victims from a wide assortment of identities and circumstances: victims of state actors, guerrillas, or paramilitaries; members of special populations like Afro-Colombian and indigenous communities; and those afflicted by forced displacements, kidnappings, or massacres of family members. ⁸ They recounted suffering violations of their human rights and of humanitarian law, as defined in international legal discourse. The assembling of testimonies on this day in July 2007 dramatized the work that several Colombian NGOs had been doing over several decades, which had widely been ignored by prior government initiatives. For example, the Jesuit-founded Center for Research and Popular Education (CINEP) had since the 1980s rigorously recorded and systematized testimony from thousands of victims, publishing excerpts in the periodical Night and Fog, a title derived from a 1956 French film detailing Holocaust atrocities. ⁹ Similarly, the Catholic Church in Colombia had maintained records of displaced victims in the country since 1985. ¹⁰ Tate (2007: 59) explains that this increasing documentary capacity of victim advocacy NGOs in the country, especially from the 1990s onward, enhanced their legitimacy. This, in turn, helped them to better control the framing of the conflict using human rights legal terminology (emphasizing the victims of internationally-legible violations) and garner the attentions of international and regional audiences like the UN and the Inter-American Court of Human Rights.

Yet this human rights discourse, now crystallized in the motivations and language of Cristo’s law project in 2007, directly contradicted the Uribe administration’s efforts to undermine any framing of an internationally-legible “civil conflict” that would imply that the state was responsible for human rights and humanitarian violations (Semana 2005). Uribe’s “rebranding” of the conflict as a matter of terrorism rather than civil war became a resounding theme throughout his consecutive presidential terms. ¹¹ This was instrumental in justifying his administration’s aggressive security approach, labeled “democratic security,” and it also shifted responsibility for victim identification and compensation away from the state. Further complicating Uribe’s reputation from a human rights perspective was an onslaught of investigations that began in 2006 into links between paramilitaries and several politicians in his inner circle, including his intelligence chief and a cousin elected to the Senate (Ramsey 2012). The concept of “parapolítica” soon emerged to signify the entanglement of paramilitary and government interests and the alarming number of senators and representatives under investigation for such ties (33 percent of senators and 15 percent of representatives among those elected in 2006) (López and Sevillano 2008).

As a result of this political climate and Uribe’s resistance to human rights terminology, one local NGO founder remembered that at the time the Victims’ Law debuted in Congress “it appeared that human rights organizations were the primary opposition party to (Uribe’s) government” (Gómez 2013: 136). Accordingly, Cristo’s and Visible Victims’ public hearing of victim testimonies in July 2007 was poorly attended, with only thirty (out of 268) members of Congress staying for the duration (Bautista 2011). The emphasis on widespread victim identification and reparations mechanisms that Cristo’s project advocated for when it landed in Senate debates later that year first had to contend with the prevailing governmental discourse that focused on perpetrator identification and actively eschewed any characterization of the conflict in terms of human rights and humanitarian violations, or their victims.

This tension between discourses determined the playing field on which members of Congress from all parties sought to modify a distinct victim category, inherited from a universal human rights framework largely ahistorical and independent from local contexts, using politically amenable criteria to periodize the conflict timeline. The empirical and discursive tools from civil society experts, including testimonies and data sets, appeared at various stages and in various capacities throughout the course of the congressional debates. And yet, members of Congress advocated for their own constructions of conflict history when determining the effective contours of eligible victimhood, especially regarding timelines of victimization. While Cristo’s coalition initially presented the bill using a “one size fits all” definition of victimhood from the UN framework, the final definition was the product of extensive modifications based on the politicians’ own proximity to violence committed against elites and their personal interpretations of national history.

It is important to note that my analysis here does not rely on any unified understanding of politicians who intervened in the debates as acting out of a singular elite identity; it considers several demographic factors that nuance the social locations of individual members of Congress. First, the role of political parties in Colombia is complex and was especially so during this period where an uribista coalition—those parties supporting President Uribe—held the majority in both chambers of Congress. For this reason, legislators had an additional partisan identity as either uribista or not when speaking out in debates. Further, the career trajectory of some politicians meant that they either were involved in local/regional politics in territories where violence was much more prevalent during earlier periods of the conflict, or they were located in major urban areas like Bogotá with business or legal careers. Still another complexity is that some of them made personal claims to victimhood. Beyond Cristo, other key politicians who could claim victim status were Liberal Party Senator Juan Manuel Galán, whose father, a presidential candidate, was assassinated in 1989, ¹² and even President Uribe himself, whose father was killed by armed actors in 1983. ¹³ These identity factors played into the kinds of claims that members of Congress made as debates about the Victims’ Law progressed.

Delimiting the Victim Category: Negotiating Conflict History and the Temporal Boundaries of Victimhood

Here I will analyze a crucial aspect of the deliberations around the definition of the victim category—the temporal boundaries of eligible victimhood—to explore the ways in which technical historical knowledge from experts both succeeded and failed to determine its final contours. I argue that congressional debates about the conflict’s historical boundaries pivoted away from being technically informed and toward being politically informed as the stakes for specific historical claims grew. The event that precipitated this transition was a demand that the scope of “victimhood” be reduced to one less inclusive than the broad UN definition. This was instigated by the Uribe administration’s internal campaign against the law, founded ostensibly on claims of its fiscal unfeasibility, which resulted in the debates being halted in 2009. Once they restarted under Juan Manuel Santos’ presidency in 2010, the government saw a political need to reduce the costs of the law by reducing the number of eligible victims. It sought to impose strict temporal limits, which politicians rationalized through their own elite narratives of conflict history rather than through the technical knowledge of human rights experts and local activists. What right-leaning parties saw as promoting “fiscal sustainability” ¹⁴ left-leaning parties saw as “amputating history” ¹⁵ by artificially, temporally limiting the scope of true victimhood within a conflict that in fact spanned more than five decades. Thus, what began as an appeal to a material need to reduce the scope of eligibility ended up begging additional rationales that congressmen constructed using their own proximate experiences with violence, along with nationally significant symbolic milestones.

Conflict History as “Contextual”: Human Rights Knowledge in the 2007–2009 Congressional Debates

When the Victims’ Law draft was introduced in the Senate on 1 October 2007, the initial definition of “victim” in its Article 15 was copied almost verbatim from the UN’s “Basic Principles and Guidelines” document on reparations for victims of human rights and humanitarian law violations. That document, adopted by the General Assembly the previous year, was initially drafted by the UN’s Third Committee, dedicated to human rights and humanitarian affairs. It draws explicitly from the founding ideas of the Universal Declaration of Human Rights of 1948 and the Geneva Conventions of 1929 and 1949, among other international treaties, and it defines victims as follows:

…persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law … the term “victim” also includes the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization. A person shall be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted and regardless of the familial relationship between the perpetrator and the victim” (United Nations 2006: 5–6).

Significantly, this document mentions no upper or lower boundaries of victim eligibility in terms of any timeline of violations. As legal scholar Nelson Camilo Sánchez (2009) has noted, the UN definition operates with the implicit assumption that the temporal boundaries of victimhood are simply those of whatever civil conflict is at issue. This transfers poorly to a context like Colombia, where the conflict’s precise origins and end are disputed. Again, when the Victims’ Law debates began in 2007, violence was still very much ongoing; the FARC only signed a peace agreement in 2016 and other paramilitary and guerrilla actors remain active to this day. ¹⁶ Even so, the lack of temporal specificity provided by the UN definition implied that any historical speculation during the congressional debates would have no direct bearing upon the scope of victimhood, since time was considered to be outside the definition’s purview.

Therefore, when the concept of conflict history inevitably entered into congressional discussions from 2007–2009, it was generally contextual, and deployed in rhetorical interludes, such as “these violent actions have affected our society for more than forty years” or “since the start of the conflict in the early 1960s….” ¹⁷ Most such assertions occurred during parts of the debates that were isolated from active policy discussion, such as during the “explanatory statements” (exposición de motivos) that preceded the presentation of each proposal. In other words, discussion of conflict timelines was restricted by what Francesca Polletta calls “genre boundaries” (2003). Polletta distinguished between the genres of “epideictic” rhetoric, or largely symbolic imaginings of the past or future, and “deliberative” argument, which is speech aimed more strategically at policymaking. Per her framework, both genres were deployed in the congressional Victims’ Law debates at this time. Speculations about the temporal boundaries of the conflict were heard in the 2007–2009 congressional discussions, but they were not featured in any “deliberative” arguments about the contours of policy until much later in the debates. Instead, historical narrative was used only to contextualize other talking points, as a sort of backdrop to the policy discussion.

These claims were not devised by congressional members but came from human rights experts such as academics and NGOs like the Red Cross and the Inter-American Commission on Human Rights. Members of the Liberal Party’s initial committee, including the main coordinator Senator Cristo, relied upon these entities for background statistics used to frame the “Human Rights Situation in Colombia” section in the first circulation of the bill, on 1 October 2007. ¹⁸ While members of Congress in these early legislative discussions were listening to and even repeating these claims from human rights experts in their speeches, they did not try to surpass them with their own historical assertions based on anecdotal knowledge, as they would in the 2010–2011 debates.

Tellingly, the only call to formally implement a legal conflict start date originated from widespread public input sessions (audiencias públicas regionales) co-sponsored by the UN and national and international victim advocacy groups. In these sessions victim leaders from a range of urban and rural communities, from Sincelejo and Valledupar in the north to central Villavicencio and Pasto in the southwest, were assembled to testify before House representatives prior to plenary debate. Out of a list of seventy-nine “principal points” that resulted from these sessions, one, framed as a demand, was that the conflict should be recognized as having begun in 1948, the start of La Violencia. ¹⁹ This date is significant because most Colombian historians would consider it the earliest potential conflict starting point, and thus the most inclusive of victims. Recognizing La Violencia as the conflict’s origin point, as opposed to, say, dates in the 1980s or 1990s, centers the experiences of populations from rural areas, where more of the violence occurred, rather than those from urban centers like Bogotá, where the deliberating politicians were located. ²⁰

Because this demand was brought into congressional discussion relatively early in the legislative process, on 3 October 2008, and was embedded in a long list of other data points stemming from the community input sessions, it was met with neither explicit acceptance nor rejection. No mention of the 1948 date made it into the bill’s text at any point, nor was it debated. The passive acknowledgement of this historical claim points to the environment of the initial debates, during which there was no codification of conflict timing as something that might determine who was a victim. To again use Polletta’s language of “genre boundaries,” matters of time had not penetrated the arena of “deliberative argument” as they would once debates resumed in 2010, when there was renewed partisan pressure to tighten the scope of victimhood.

The only serious attempt to impose a temporal boundary on the victim category during the 2007–2009 period occurred later in the House debates, after public hearings subsided and a conservative majority introduced new key political voices. Representatives Jorge Mantilla and Fernando de la Peña successfully sought to institute a cutoff date whereby new claims of victimization would not be accepted beyond two years after the law’s ratification. This decision was rationalized using only budgetary considerations and no historical claims were made about the appropriate length of time to expect violations, and the conflict in general, to continue into the future. The two-year cutoff instead assumed that all violence had already occurred and that the two years would function merely as a grace period for existing victims to go through the appropriate processes of seeking victim status. Even this boundary, intended to control the total cost of the law, was met with dissatisfaction by Representative Carlos Jaramillo, a businessman by trade and an Uribe supporter who hails from the same home region. He claimed it was financially untenable to extend reparations for an additional two years of victims on top of the “fifty years” (thereby acknowledging an implicit assessment of the conflict as roughly fifty-years long). ²¹ This linkage between the financial burden of the law and the temporal scope of victimhood was starting to take shape as a material political hurdle for the bill to overcome.

The night prior to the final voting session on 18 June 2009, Uribe’s Minister of Finance Óscar Iván Zuluaga circulated an urgent letter to Congress projecting the law would carry a price tag of 80 billion pesos. This was more than eleven times the estimate of 7 billion pesos that had been agreed upon in the preceding drafts and debates. This fiscal panic, intended to dissuade final approval of the bill, served Uribe’s ideological opposition to the law and the discursive shift it represented toward assigning the state responsibility for human rights violations. Uribe’s administration had a vested interest in terminating the bill altogether because it directly threatened his platform that denied the very existence of a civil conflict. In a public speech the morning of the voting session, Uribe himself parroted the new financial figure, an estimate that Senator Cristo dismissed as a “magic number.” In a speech that same day, another senator dismissed the projected sum as a fantasy of the administration, saying simply, “We can’t approve the cost of 80 billion pesos.” ²² This internally coordinated campaign to portray the Victims’ Law as financially crippling led to its failure in the House that summer. ²³

What this meant for the process moving forward is that it publicly coded the Victims’ Law as fiscally irresponsible (rather than openly acknowledging that it threatened Uribe’s platform). This laid the groundwork for a restrictive mentality that prevailed when the project was revived under President Juan Manuel Santos’ administration in 2010, one determined to shrink the universe of victims entitled to reparations. I now turn to how this was achieved in part by restricting the upper and lower bounds of conflict history.

Elite Historical Narratives in the 2010–2011 Congressional Debates

In both stages of the debates—before and after the 2009 fiscal panic incited by Uribe’s administration—members of Congress drew from an array of justifications to make claims about the proper scope of victimhood. Whereas historical claims about the timeline of violence were contextual and less polarizing in the initial debates from 2007 to 2009, once the fiscal pressure to restrict the scope of victimhood became critical then temporal rationales played a larger role in defining victims. Yet, at the same time that historical considerations about the conflict’s timeline became more important, the debate structure left civil society voices of human rights experts, academics, and NGO directors with less of a platform to share historical claims, while the politicians were granted more opportunities to fashion historical accounts based on narratives of proximate violence—accounts of violent acts that personally impacted their own families or social circles—and on national political milestones.

Part of this shift was organizational in nature since the opportunities for public hearings and expert-sourced commissions were front-loaded in the debates. Those were the arenas where activists and academics directly provided input. Representative Alfonso Prada of the Green Party, for example, praised the inclusion of civil society members at the introductory public hearing in October 2010, but in the same speech he questioned whether it represented a sufficient “participatory design” for the legislative process. ²⁴ Speaking on behalf of the First Commission of the House of Representatives, Prada summarized their apprehension due to the “paradox” that civil society’s participation had been confined to the public hearing while it was excluded from “the full dimension of design and elaboration of the law.” ²⁵ The final boundaries enshrined in the Victims’ Law were a start date of 1 January 1985 for violations eligible for claims, and an end date for future claims that was ten years after the law’s passage (which turned out to mean until 10 June 2021). Both limits were a result of elite historical rationale interacting with political and fiscal pressures for a restricted scope of victimhood. ²⁶

Two sub-debates regarding the conflict timeline began simultaneously when House debates resumed in 2010. The first involved worries over the ambiguous nature of “future victims,” which several local NGO directors had testified about in a public hearing on 21 October. These human rights experts emphasized the ongoing nature of the war and that it “adds to its victims daily.” ²⁷ This was an attempt to intervene in the conversation about the appropriate duration (vigencia) of the law within which new victims could come forward and claim reparations. ²⁸ Some senators chose to amplify this demand. For example, Liberal Party Representative Victoria Vargas asked that the law be extended generously enough to incorporate all future victims of increasingly active “neo”paramilitary groups like the Black Eagles. Nonetheless, the Liberal senators reduced their demands for an extension of fifteen years or more to just ten years. This occurred when the debates ceded to the logic of Representative Jaime Buenahora Febres, whose constituency encompassed mainly Colombians living in the United States and who himself had lived abroad for over a decade at this point. He claimed fifteen years would be financially reckless in light of the debt-ridden, “sick” status of the state’s finances. ²⁹ Thus, while this ten-year limit marked an expansion from the 2009 debates’ full rejection of future victims, it expressed the same lingering unease over the material burden of issuing reparations, and showed that the temporal scope of victimhood was a terrain upon which these cost-saving measures, or what one critical representative called “mechanisms of exclusion,” could play out. ³⁰

The second sub-debate pertained to the lower bound of temporal eligibility of victimhood, which made its debut in the bill’s text in the specific context of displacement victims, who would only be eligible to bring forward claims for violations that had occurred after 1984. ³¹ Although this initial time boundary was an artefact of financial restrictions from the 2007–2009 debates, members of Congress began to construct historical rationale to support the date. For example, Representative Buenahora, of Uribe’s party, voiced an argument that included a narration of key conflict events in order to explain why 1984 made good historical sense: “I would propose … that we adopt 1984 as the starting date, yes from ’84 until now, understanding that then, for example, the victims of that horrible year that was 1989, with the bombings of DAS and at the El Espectador building and the Avianca airplane, the violence unleashed by narcotrafficking, three assassinated presidential candidates, and so on—of course they have to be beneficiaries….” ³²

This argument can be understood as an elite narration of conflict events, citing mainly those that impacted businessmen, public officials, and presidential candidates, as opposed to the millions of everyday Colombians victimized in mostly rural areas. Buenahora’s reference to bombings at DAS, the intelligence agency of Colombia at the time, and El Espectador, one of the country’s most notable newspapers, highlights aspects of the conflict that, for other politicians in the room, occurred close to home both socially and geographically. Buenahora himself was educated in Bogotá and had been an active university faculty member there during the 1980s. These highlighted events would also have held particular symbolic valence in Colombian official memory, to the extent they represented attacks on political and democratic institutions. This even though these events had fewer victims than did the daily displacements and massacres of communities further from the capital.

This discriminating timeline of violence was not a natural extension of the evidence expert witnesses had presented at earlier public hearings. Although Buenahora sought to fortify decision-making with historical narration, he did so by asserting his own personal “expertise” about conflict history—conditioned by social proximity to particular violent events—above the debate testimony and statistics previously presented by NGOs and other human rights actors.

Representative Miguel Gómez, of Uribe’s party, picked up on this deployment of elite-centered historical narratives to argue for a different timeline for victim eligibility. He advocated for a more generous cutoff date to include the assassination of Uribe’s father in 1983 and the FARC’s kidnapping of twenty-two Colombian soldiers in 1980. ³³ Gómez here contradicted the purely fiscal arguments for narrowing rather than widening the scope of victim eligibility. Historical rationale for paying homage to Uribe’s family and elevating the FARC’s role as key perpetrators were considered more important than the material goal of paying fewer reparations. This trend became ever clearer in final deliberations about the cutoff date.

During this debate session there was no serious consideration of dates reaching back to the 1970s, 1960s, 1950s, or even to 1948, as proposed at the public hearing months earlier. One exception was an intervention by a conservative politician who thought the conflict should be dated back to 1492, when the “indigenous and native peoples were first violated by the (European) invader.” He was trying to undermine the conversation by illustrating the impossibility of delimiting violence throughout a nation’s history. ³⁴ Yet members of Congress mostly debated the incremental expansion or contraction of the start date; once 1984 was placed on the table, politicians merely argued for moving it to slightly before or after that date, according to their specific historical rationales.

Starting in the debates of November 2010, various representatives began rallying around either 1991 or 1993 as alternatives to the 1980s dates that had been suggested. Like the elite historical narratives that representatives Buenahora and Gómez had constructed in reference to specific bombings and assassinations, those now pushing for 1991 or 1993 centered their arguments on key events that, according to the vice-president, commemorated “national unity” rather than violence. For example, right-wing representatives suggested that it was sensible to choose 1991 because that would pay homage to the year the country enacted its new constitution, hailed as a symbol of national progress and consecration of democratic norms. ³⁵

While these arguments gained traction among some members, Liberal Party representatives were enraged at this attempt to use overtly nationalist symbolism as a tool to drastically cut out the eligibility of earlier victims. Representative José Camelo argued that “paying homage to one of the most violated constitutions in our country doesn’t make sense.” His colleague Jack Jaller, newly affiliated with the Afro-Colombian bench in Congress, claimed, “The only homage that should be paid is to the victims.” ³⁶ When 1993 was introduced as an option, representatives from multiple parties rallied behind the date for its parity with the passage of the 1993 Law of Public Order, the state’s first formal acknowledgement of the civil war. ³⁷ Both 1991 and 1993 were rationalized as viable dates to circumscribe the victim category not because they correlated to any empirical reality of victimization—visible through data that local NGOs had already presented to Congress—but because they paid homage to key political events within the specific purview of the politicians.

By the end of 2010, the debate over the timeline had pivoted so heavily toward nationalist symbolism that one representative opined that this legislative project was not intended to “salute the flag,” but neither was it meant to “comply with the parameters” of NGOs and international “human rights norms.” Instead, Representative Hernando Padaui Álvarez asserted, the work of Congress was to determine the “truth” about who the actual victims deserving of reparations were. ³⁸ By that December, representatives across the political spectrum had grown frustrated with the “arbitrary” and contested nature of determining a start date, which led Representative Oscar Bravo Realpe of the Conservative Party to proclaim: “Of course, the question would be why not 1940 or 1950, or since the War of a Thousand Days (in 1899–1902), well, because we have to be fiscally responsible, and the state and the government has to tell us exactly from what date they promise to issue reparations to victims, or to return their lands, and because there isn’t a magical date that the Holy Spirit has deposited in our minds, it has to be a date made from (our) consensus….” ³⁹

Bravo Realpe’s statement reveals what, over the course of the debates, had become a shared underlying belief among congressional members: whatever temporal constraints would be placed on the definition of victims, they should be arrived at through congressional deliberation; they had to weigh fiscal consideration along with historical knowledge, rather than choosing numbers “magically” determined or established by NGO expertise about the history of the conflict (as Padaui Álvarez had emphasized).

The specific rejection of NGO expertise manifested in two ways in the final debates. When 1991 was on the table as a starting date, Senator Juan Manuel Galán—who, as I mentioned earlier, could himself be eligible to be a victim due to his father’s 1989 assassination—was ignored when he pointed out the discrepancy between the debate’s date consensus and the records of the Catholic Church, which had tracked displacements and identified victims since 1985. “What are we going to do with those years between 1985 and 1991?” he complained, illustrating the gap that had grown between conflict knowledge from the human rights community and the circulating rationale based on nationalist symbolism. Adherents to the latter advocated for reparation awards to begin in 1991, thereby commemorating the adoption of constitutional reform. ⁴⁰ In another unsuccessful attempt to incorporate expertise from the human rights community, Senator Luis Avellaneda intervened to try to push the date as far back as 1980, based on a host of data from the organization Colombia Never Again and the Inter-American Commission on Human Rights. That data revealed a sharp uptick in conflict violence during that decade, including increased rates of kidnapping, homicide, and torture. ⁴¹ Avellaneda was criticized for trying again to broach the subject of time after, it was asserted, it had been settled in the previous debate. ⁴²

His proposal, and the historical evidence supporting it, gained no traction, and Cristo retorted that Congress had reached a consensus in the last session that 1 January 1985 would be the start date because it was a compromise among the various dates proposed; it appeased both the left-wing politicians who advocated for the earliest start dates and the right-wingers who sought the latest. What finally sealed this as the date, according to Cristo, was that it was a compromise between financial arguments for limiting the timeframe of eligible offenses and the fact that it upheld the previously established rhetoric of recognizing violence against “their own.” After all, he clarified, 1985 would enfranchise the family members of the slain presidential candidates in the late 1980s. ⁴³ Significantly, the historical considerations here tempered what would have been the most financially expedient cutoff dates previously proposed: 1991 or 1993.

When the Victims’ Law was passed in a plenary session of the whole of Congress on 1 June 2011, the temporal boundaries instituted were the product of a power struggle between multiple forms of knowledge and rationale that had played out over the debates. The consensus that eventually developed around 1 January 1985 as the start date and 10 June 2021 as the end date was established by political deliberation about key events in conflict history and the overwhelming financial anxieties first professed by Uribe’s administration. There had been an opportunity for human rights experts and databases about the empirical reality of victimization over time to determine the scope of the victim definition through testimonies in public hearings and the allocation of statistics by members of Congress, yet they were not decisive in determining voting outcomes in the later stages of the debates. Ultimately, politicians’ own understandings of national history as based on socially- and geographically-relevant violence and deference to symbolic political events steered them toward the more recent 1985 boundary. Temporal limits had been instigated by initial alarm over the law’s fiscal tolls, precipitated by the Uribe administration in an effort to undermine the project for what were in truth ideological reasons. Yet, in the end, the dates were sustained by accompanying historical rationales produced by politicians. ⁴⁴

Conclusion

Deliberations about the boundaries of the victim category in Colombia played out in a national legislative context with participation by both civil society representatives and politicians from across the partisan spectrum. Although the original proposal was spearheaded by collaborations with local, regional, and international human rights organizations, the initial victim definition was during later stages of the debates extensively modified based on insulated political deliberations. Specifically, the temporal limits placed on victim eligibility were drawn according to Congress members’ own narratives related to their historical knowledge of elite traumas and symbolic national events. These justifications were produced in response to broader material and ideological pressures to restrict the victim category that emanated from the Uribe’s administration’s influence on the early debates, from 2007 through 2009. Following the law’s ratification in 2011, though there was widespread popular support for it, some civil society organizations expressed disappointment at having been excluded from both the process and the narrative outcomes of the law. Shortly after the law’s passage, the Movement for Victims of State Crimes (MOVICE) lamented in a memo that though they had submitted proposals to be circulated during the debates, they were simply ignored (MOVICE 2011). The Network for Alternatives to Impunity and Market Globalization, which includes MOVICE along with more than twenty-five local and regional organizations throughout the country, lamented the rejection of “popular memory” in the decision regarding the temporal limit, observing that the 1985 date excluded state-centered violence like the repression of the 1977 National Strike. ⁴⁵

These post hoc grievances put into focus the insulated nature of the congressional debates despite provisions to include civil society voices and opinions in earlier stages of the legislative process. Furthermore, the indictment that “popular memory” had been excluded suggests that memory was indeed leveraged in the decision-making process, but memory that emanated from elite historical narratives rather than the testimonies or historical reports from beyond Congress. This particular legislative event exposes the unique vulnerabilities, in Colombia and perhaps other countries, of political bodies as deliberative arenas for determining transitional justice outcomes.