Transitional Justice for Peace in Colombia

The narrow “No” victory in Sunday’s plebiscite on Colombia’s government-FARC peace agreement shocked both Colombians and the international community who were preparing for an end to 52 years of internal conflict. Countering polls that indicated that the accord would be widely approved by the country’s populace, the opposition victory has now created uncertainty about the product of 4 years of negotiations.  Many analysts and opposition voters have attributed the “No” victory to the view that the accord is too lenient on the FARC. According to the agreement, members of the FARC that admit their crimes through truth reconciliations will avoid incarceration and only suffer ambiguous “restrictions of liberty” and the guerrilla group will be able to organize into a political party following disarmament.

Many critics to the agreement see these concessions as impunity. A voter interviewed by the Washington Post whose brother and uncle were kidnapped by the FARC in the 1990s said: “they need to change the accord so that there’s some kind of punishment for those who committed these crimes.” This is a perspective not only common among Colombia’s “No” voters, but also fundamental to conceptions and debates on post-conflict justice throughout the last century, originating in the creation of individual criminal responsibility for war crimes, crimes against humanity, and crimes against peace in the Nuremberg trials. Transitional justice has been a tricky subject for countless divisive, violent conflicts, including the Holocaust, genocides in Rwanda and former Yugoslavia, South African apartheid, Chilean state terror, and Salvadoran civil war. The Colombian context can learn from these former cases.

Jack Snyder and Leslie Vinjamuri argue that the “legalist” perspective of criminal justice (punishment for perpetrators of war crimes and human rights violations) has often had devastating consequences for transitions to sustained peace, especially in places with a weak rule of law and institutional incapacity for effective justice. For example, in the former Yugoslavia: “the ICTY’s decision to investigate rebel atrocities led the guerrillas to destroy evidence of mass graves, creating a pretext for hardline Slavic Macedonian nationalists to renew fighting in late November 2001 and to occupy Albanian held terrain” (Snyder, Vinjamuri 12). Despite the legitimate desires to hold perpetrators accountable for crimes, strengthen the rule of law, and assign guilt following horrific violence, Snyder and Vinjamuri argue that trials can provoke backlashes from perpetrators in the short term and a culture of perpetual resentment and polarization in the long term. Through a thorough analysis of the results of different forms of transitional justice following 20^th century conflicts, Snyder and Vinjamuri conclude that amnesties and truth commissions have “often been the basis for durable peace settlements” (43).

 Similarly, Forsythe characterizes punitive solutions to post-conflict transitions as “judicial romanticism” in that it views criminal justice as “a panacea for violations of human rights” (Forsythe 90). On the other hand, he asserts that “there are ways of doing good for individuals, and maybe even advancing certain human rights over time, through delaying or bypassing criminal justice” (Forsythe 118). Following the South African apartheid, Nelson Mandela himself advocated for truth and reconciliation commissions rather than criminal justice in order to “build a multi-racial rights-protective society” (Forsythe 115). 

Victims and their families are absolutely justified in demanding closure, accountability, and reparations from perpetrators of violence. However, the question remains: is the long-term goal of transitional justice sustained peace or reprisal? The experiences of other conflict-torn countries demonstrate that amnesties, truth reconciliations, or other alternatives to criminal justice are often more effective in moving the country forward, particularly following long-term ideological conflicts. Furthermore, truth commissions often provide more meaningful and culturally sensitive closure and accountability than punitive criminal justice. 

The context of Colombia is even more complicated considering the variety of actors that have contributed to violence. Unlike the unilateral state terror in Argentina, or the genocides of Rwanda and former Yugoslavia, violence in Colombia has been perpetrated from different sides: from the FARC, the State, paramilitary groups, and other actors. Assigning responsibility for violence would then have to impute members from all of these groups, which is highly unlikely.

The peace accord in Colombia is far from perfect. Nonetheless, it demonstrates a resounding commitment to building peace in a country afflicted by internal conflict for half a century. Building peace takes sacrifice and negotiation, but is undoubtedly preferable to the alternative. Engaging in constructive dialogue about transitional justice is crucial to promoting peace in a country so desperately ready for it.

Between Drug Control and Human Rights: Bolivia's Alternative to Prohibitionism

Below is the Introduction to my Senior Honors Thesis. To read the complete text visit: https://esferasnyu.com/issue-6-spring-2016/

Introduction

For nearly fifty years, laws that make the consumption and production of drugs illegal have dominated the international drug control regime. In Latin America, where the majority of the world’s cocaine is produced, drug control has historically been imposed by the United States, rather than by domestic priorities. Since the declaration of the “War on Drugs” in the Nixon administration, supply-side drug control has been a central axis of U.S. foreign policy, and has blurred the lines between counter-insurgency, counter-terror, counter-narcotics, and other military escalations based on “security threats.” Today, human rights advocates, including the Human Rights Watch and the UN Human Rights Commission, agree that these “War on Drugs” policies have had consistently detrimental effects on human rights, democratic institutions, and levels of inequality in the Americas.[1]

In the last ten years, human rights, public health, and national sovereignty discourse have sparked a reevaluation of the prohibitionist norm. Latin American countries have been at the forefront of these debates, partially due to the rise in “new left” governments that dispute U.S. political and economic hegemony, as well as due to the painful memories these countries still feel from failed militarized anti-drug strategies. In Uruguay, President Pepe Mujica caught the international spotlight for proposing the legalization and regulation of the cannabis market. Other countries in the region, including Jamaica, Colombia, Ecuador, and Argentina have decriminalized small quantities of marijuana possession. Even the United States, long the promoter of heavy-handed drug criminalization domestically, and counter-narcotics operations internationally, has legalized and begun to regulate the cannabis market in two states, Washington and Colorado. Finally, Bolivia, which had been one of the primary targets of U.S.-orchestrated supply-side anti-drug operations, is now one of the main sites of alternative approaches to drug control. The President of Bolivia, Evo Morales, has built an argument for sustainable, community-driven control of coca based on anti-U.S. imperialism, indigenous cultural rights, and economic justice. Coming from the cocalero community himself, Morales has centered his contestations of the international drug control regime on the traditional value of the coca crop in Bolivia, which is protected by international human rights treaties. These drug reforms rely on cooperation between the state and coca unions to regulate the amount of licit coca that is produced for domestic markets, and thus, is known as “community coca control.”

The case of Bolivia provides a unique insight into the drug policy debate, not only because of the country’s history with unpopular and divisive “War on Drugs” interdiction and eradication campaigns, nor its unapologetic contestation of international drug control efforts, but because it highlights critical questions about the incompatibility of drug control and human rights, in doctrine and in practice. While the drug policy reforms in Bolivia respond to the economic, cultural, and political detriments of the militarized drug control strategy, and contest the objectives of U.S. intervention, these reforms do not, in fact, holistically overturn the drug prohibitionist paradigm. On the contrary, the Morales administration has sought to strike a delicate balance between appeasing domestic concerns in the politically salient cocalero community and not entirely alienating itself from international interests of decreasing drug production and combatting drug trafficking. The impact of these policies on human rights is still of great importance. Since drug policy does not only affect coca growing communities and human rights have been a channel to contest prohibition, it is necessary to evaluate the human rights consequences of Bolivia’s drug policy overall, rather than just within the coca reforms.

Bolivia illustrates how the debate on human rights is obstructed or promoted depending on the political agenda at hand. Human rights have been used as the means to contest dangerous drug policies in Bolivia, and because it is one of the core regimes of our international system, the human rights framework is indivisible from a drug policy analysis. My thesis seeks to explore Bolivia’s current and historical role in international drug control, revealing the tensions between drug criminalization and human rights values, elite interests and indigenous rights, international protection and national sovereignty. Bolivia has made notable steps in protecting the rights and interests of the coca growing community through community coca control on the basis of cultural, economic, and political rights. Nonetheless, it has still largely attempted to meet international expectations of drug control. I view the simultaneous commitments to human rights and drug control in this context to be fundamentally conflicting.

In order to contextualize current debates, I begin by exploring the development of the “War on Drugs” (militarized counterdrug operations aimed at defeating the production and proliferation of drugs) as a central component of U.S. foreign policy objectives in Latin America. Next, I analyze Bolivia’s history with militarized anti-drug operations in order to highlight the notable human rights violations and marginalizing economic and social effects of these policies. The “War on Drugs,” by constructing an enemy in the narco/cocalero figure, has been able to justify extreme uses of violence for the sole objective of fighting drug trafficking. Thereafter, I discuss the coca reforms instituted by Bolivia, beginning in 2004 but accelerated in 2006, in both their rhetorical framing as an affirmation of indigenous and cultural rights, and in their effects on social conditions. Finally, I will analyze the existing contradictions in Bolivian drug policy between coca and “other” drugs, highlighting the continuation, and in some senses, escalation of drug control strategies. In the conclusion I explore whether the Bolivian government can systematically improve human rights while still adhering to prohibitionism as delineated by international drug accords.

My research methodology combines a contextual approach to narrating the history of the “War on Drugs” in the Americas through existing literature and international conventions, with more current information from reports and interviews with professionals and community advocates in Bolivia. By combining a summary of secondary source research with more up-to-date reporting of the impact of recent changes in drug policy, I hope to highlight the more localized responses from NGOS and local government agencies, to national and international policies. In examining the complicated negotiations between human rights and drug control in Bolivia, I analyze both local conditions and international forces. Locally, I examine how the particular conditions of Bolivia, such as the traumatic experiences with forced eradication among the coca-growing community and concomitant political mobilizations, have shaped national decision-making. Despite this localized analysis, much of my paper refers to and is based on international systems and forces. Both human rights and drug control are international regimes that gain force through their application in national contexts. Ultimately, however, they are systems of shaming, rewarding, financing, and evaluating that largely operate on an international scale. Particularly when dealing with drug control, my research places a significant weight on the ability of foreign mechanisms to impose and constrain state behavior. The unique experience of Bolivia, where drug control has taken various, oftentimes conflicting, forms throughout history, provides a critical commentary on this global reality.

First, however, I will define some key concepts used throughout the paper.

Coca and its Cultural Context


Many only know coca as the plant from which the narcotic cocaine can be extracted and produced. However, in the Andean region of South America, the coca plant has had a far more historical and multidimensional role. Historians claim that the use of the coca leaf can be traced back to at least 3000 BC.[2] Indigenous communities valued the leaf’s nutritional properties. In fact, indigenous laborers in harsh conditions found that it would supplement vitamins and minerals missing from their diet, including calcium, iron and phosphorous.[3] For laborers working in dire conditions and surviving off a restricted diet, these properties have been critical:

During the colonial period, Quechua and Aymara Indian laborers in the silver mines consumed coca—or the hoja sagrada, as it is commonly known in Bolivia—as a stimulant and as protection against altitude, hunger, and cold. Five hundred years later, the practice known as acullico, in which the coca leaf is chewed and held in a wad in the cheek, is still regularly adopted by at least one million Bolivians, mostly Indian peasants and miners.[4]

Apart from its medicinal uses, the coca leaf is also central to indigenous rituals, especially in the mink’a gift-giving system, which is still used to reinforce social ties in various communities.[5] Today, coca is primarily produced in the Chapare and Yungas regions of Bolivia—and while the traditional cultivation of coca has mostly taken place in the Yungas, the Chapare has also been a primary site of domestic and international production. Although cultivation is concentrated in these particular regions, the cultural importance of coca continues to be felt today throughout the entire country. According to the National Coca Study of 2013, 30% of the Bolivian population regularly consumes the coca leaf.[6] This may be in the form of chewing the leaf, drinking coca tea, or consuming other coca derived products. Apart from its practical significance as a frequently consumed plant, coca has developed into a national Bolivian symbol. Perhaps in response to the aggressive forced eradication operations of the “War on Drugs,” the plant has become a cultural artifact with great significance for coca growers, indigenous communities, and Bolivia as a whole.

Historically, the state has recognized the cultural importance of the coca plant, and until the ratification of the 1961 Single Convention, and more forcefully the enactment of Law 1008 in 1988, coca was not viewed as a dangerous narcotic, but rather as an important natural supplement. In fact, in 1940, the Bolivian government passed a decree declaring coca to be “‘an article of prime necessity’ and ordering its compulsory sale in mining and railway companies.”[7] However, as demand for cocaine grew in the 1970s, mainly from the United States, coca production grew dramatically, converting itself into an international commodity in high demand. Furthermore, with the decline in the mining and tin industries, and consequently, skyrocketing inflation and economic unrest in the 1980s, more and more peasants who were familiar with coca production, began to cultivate the plant to maintain a reliable and consistent source of income.[8] Many of these farmers were migrants who had moved to the Chapare in the mid-20th century due to the disappearance of other labor markets. Extreme levels of income inequality and poverty in Bolivia overlap with ethnic demographics, so that the 56-70 percent of Bolivians who are indigenous largely overlap with the two-thirds who live in poverty, many of whom are subsistence farmers who became involved in coca cultivation.[9] Coca production has provided a basic income for the otherwise unemployed and vulnerable in Bolivia. Accordingly, “at its peak, the coca industry in Bolivia contributed more to national income and employed more people than that in any other country. Until the late 1990s, when intensive eradication programs began, growing coca provided subsistence for approximately 45,000 Chapare families…”[10]

These economic and population shifts resulted in national coca production growing from an average of 9,000 tons a year between 1963 and 1975 to an average of 79,000 tons from 1976 to 1988.[11] Coca cultivation has numerous advantages to other crops. It comparatively generates a higher income, yields faster returns, requires less labor and attention, and is easier to pack and transport.[12] Merchants often even drive to the coca farms to collect the plant, and transport it to makeshift processing facilities, where the coca leaves are converted into coca paste, then cocaine base, and eventually, treated with hydrochloric acid to become crystallized cocaine. It is a complicated three step process to convert coca into crystallized cocaine, and for this reason, many Bolivians, including current president Evo Morales, adamantly insist that coca and cocaine are two very different substances that must not be addressed with the same policies. The Morales administration, largely due to Morales’ origins as a coca farmer himself, has committed itself to promoting the benefits and cultural importance of the coca leaf. Today, images of the leaf can be found on key chains, souvenirs, and other memorabilia, demonstrating its role as a symbol of the evolution of Bolivia, from a country that stigmatized the coca leaf, to one governed by an ex-coca farmer proud of his indigenous background and cultural practices. In this sense, the coca leaf has not only been the subject of drug policy disputes, but has grown into the actual symbol for contesting international intervention and celebrating national sovereignty.

International Legal Structures and Disputes

Individual countries have a limited ability to shape their own approach to and conceptions of drugs, and instead, are bound by international norms and conventions that have formed the international drug control regime. The 1961 Single Convention on Narcotics Drugs is likely the most influential international drug accord, as it sought to combine all of the previous drug treaties into one comprehensive agreement. On the basis of the “health and welfare of mankind” the 1961 Single Convention required signatory countries to strive to limit the “production, manufacture, export, import, distribution of, trade in, use and possession of drugs.”[13] While the 1961 Convention provided the general framework for its 61 signatory countries to abolish the recreational use and trade of all drugs, including the traditional consumption of coca, opium, and cannabis, the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances provided more explicit requirements for states to prohibit and abolish drugs. In its third article, this convention requires signatories to “establish as criminal offenses under [their] domestic law the growing, buying, selling or possessing of drugs including marijuana.”[14] These conventions have had strong consequences for the development of an international prohibitionist paradigm, one that treats drug users or crop cultivators as criminals, and gives international legitimacy to anti-drug intervention efforts. On a practical level, the Plurinational State of Bolivia’s adherence to these two conventions has required it to treat possession, consumption, and cultivation of enumerated drugs (including the coca leaf) as criminal offenses. As of September 1976, Bolivia was required to abolish coca leaf chewing as a consequence of the 1961 Single Convention. Years later, in a moment of national triumph, Bolivia made a reservation to the 1961 Convention, and re-acceded to the convention in 2013, maintaining that the Bolivian legal system recognized the traditional licit use of the coca leaf. This move was viewed as highly controversial, and opponents claimed that such a violation of the international convention would undermine “the universality of the drug control regime.”[15] While the UN Secretary General ultimately permitted Bolivia’s re-accession, this deviation from what the international community defined as the proper drug control strategy has provoked negative characterizations of Bolivia as an uncontrolled narco-state. In fact, in its 2015 determination, the U.S. State Department named Bolivia as a major “illicit drug producing country,” and thereafter secretly indicted top Bolivian officials in a highly controversial Drug Enforcement Administration operation.[16]

Nonetheless, there is considerable international legal support for Bolivia’s deviation from the 1961 Conventions on the basis of indigenous and social rights. Numerous International Human Rights treaties protect indigenous cultural traditions, as well as vulnerable socio-economic groups from the violations that often result from drug control strategies. In fact, “one of the key objectives of the international legal regime of the rights of indigenous peoples is the preservation of their cultural integrity, including the right to maintain and develop their cultural identity, customs, and traditions…”[17] In the United Nations Declaration on the Rights of Indigenous Peoples adopted by the United Nations General Assembly in 2007, the spiritual traditions, ceremonies, medicinal/health practices and cultural traditions of indigenous communities are protected.[18] Furthermore, in Convention Number 169 of the International Labor Organization, signatory states are required to protect “the social, cultural, religious, spiritual values and practices…[and] the integrity of the practices of indigenous people.”[19] These rights are consistently repeated in other International Human Rights treaties including the International Covenant on Civil and Political Rights, which establishes the right of minorities to enjoy their own culture; International Covenant on Economic, Social, and Cultural Rights which gives protections to the ways of life and cultural identity of indigenous peoples; and the Convention on the Elimination of Racial Discrimination, which requires States to fight discrimination against indigenous people.[20] Ultimately, there is certainly precedent and consensus in the international legal system that the rights and practices of indigenous communities must be protected. And, as coca has a critical role in the Aymara and Quechua traditions, it is fairly logical that these international protections apply to indigenous communities’ production and consumption of the coca leaf.

While indigenous rights are an important component of our human rights framework, due to the need to protect and support indigenous communities following a history of exclusion and violence towards them, the general definition of human rights is far broader. Naturally, there are debates about the definition of human rights, and what they should or should not encompass. However, for the purposes of this paper, I will be using the internationally accepted Universal Declaration of Human Rights to delineate the basic rights that, ideally, are internationally accepted as the normative rights regime. The Declaration defines what the international community views to be the most fundamental and inalienable rights of people in all countries, contexts, and environments. Among these, I will highlight a few that become particularly implicated in drug policy debates. In Article 5, the Declaration states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[21] Similarly, Article 9 establishes that “No one shall be subjected to arbitrary arrest, detention or exile.”[22] And Article 11: “Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to the law…”[23]And finally, in Article 25: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family…”[24]As we will see in the following chapter, whether overtly or implicitly, the militarized criminalization of drugs has legitimized the violation of these basic rights.

Certainly these human rights are persistently violated in signatory countries around the world. The nature of the international human rights regime is that while states can normatively accept the existence of human rights and the importance of protecting them, they are very rarely forced to implement them. The state on its own is responsible for translating these international standards into national law, action, and protections. The international community, particularly the West, has oftentimes urged states to adopt human rights measures through ideological imperialism and geopolitical hierarchies. However, more authentic, organic and successful mobilizations have occurred when internationally legitimized human rights standards are merely used as supportive resources by grassroots campaigns or oppressed peoples and their political allies. In Bolivia, the development of human rights is deeply connected to the historical repression of indigenous people and disenfranchised workers, as well as retaliation to the oppressive dictatorships of the 20th century. However, it was not until 1978 that the Permanent Human Rights Assembly was established in Bolivia by socially minded clergy who resolved to translate the standards established in the Universal Declaration of Human Rights into national protections for human rights.[25] Although other groups, including workers unions and the Catholic Church, fought for human rights, this Assembly emerged to provide, for the first time, the promotion and defense of human rights for vulnerable Bolivians during a time of turbulent dictatorships and social conflict. The establishment of this Assembly and similar civil society groups has provided grassroots groups, including coca growers unions, with the necessary language and tools to contest human rights violations. The Bolivian government established the national Ombudsman, or human rights defender position, in 1998.[26]

Despite the growing influence of international human rights standards and the heightened visibility of local civil society actors, upholding human rights continues to be challenging for modern states. Additionally, when countries are constrained to adopt drug control measures that inherently contradict human rights doctrines, there is a strong normative dissonance on top of the existing practical barriers. For drug policy and human rights to be in accord, drug policies must not violate human rights protected by international charters.

Bolivian history and policies reveal the incompatibility of these two regimes (human rights and drug policy). As I argue in this paper, it is not merely the direct contradictions of human rights and international drug control that conflict in doctrine, but the interpretation of the prohibitionist norm into militarized drug control strategies inevitably has dire consequences on the human rights of marginalized socio-economic groups. Prohibitionism provides a legal justification for implementing the law at all costs, such that human rights and social goals become secondary to the unattainable quest to eliminate drugs. The “War on Drugs” policies adopted by the Bolivian government under the guidance and pressure of the United States in the 1980s-2000s provide illustrative examples of the effects of aggressive drug control. Moreover, while Bolivia deviated from the 1961 Convention with regards to coca chewing, the continued criminalization of drug offenses demonstrate the pervasive nature of the international drug control regime in regulating state behavior. The case of Bolivia is exceptional because while the coca reforms developed in tandem with human rights rhetoric in response to the “War on Drugs,” that same militarized approach to drug control continues to be articulated, but this time just in response to threat of the narco, rather than the previous cocalero/narco association. Bolivia has certainly been successful in provoking global reevaluations of drug interdiction, eradication campaigns, and the overall criminalization of coca, but the continued prohibition of marijuana and over-incarceration of low-level drug offenders reveal the difficulties of truly overturning the prohibitionist paradigm.


[1] Human Rights Watch, “Human Rights Violations and the War on Drugs—Bolivia.” Human Rights Watch, 1995. Web. 8 Oct. 2015. 1.


[2] James Painter, Bolivia and Coca: A Study in Dependency (Boulder: L. Reinner, 1994) 1.


[3] Painter 1.


[4] Painter 1.


[5] Painter 1.


[6] CONALTID, Estudio Integral de la Hoja de Coca en Bolivia (La Paz: CONALTID, 2013) 217.


[7] Painter 2.


[8] Painter 3.


[9] Coletta Youngers and Eileen Rosin, Drugs and Democracy in Latin America: The Impact of U.S. Policy (Boulder: L. Reinner, 2005) 146.


[10] Youngers 147.


[11] Painter 4.


[12] Painter 12.


[13] Well Bennet and John Walsh, “Marijuana Legalization Is an Opportunity to Modernize International Drug Treaties.” Brookings Institute, 2014. Web. 20 Sep. 2015.


[14] Bennet et al.


[15] Sven Pfeiffer, “Rights of Indigenous Peoples and the International Drug Control Regime: The Case of Traditional Coca Leaf Chewing” Goettingen Journal of International Law 5 (2013): 303.


[16] Tabory, Sam. “US Targets Bolivia Government with Drug Trafficking Indictments.” Insight Crime, 2015. Web. 19 March 2016.


[17] Pfeiffer 292.


[18] Pfeiffer 292.


[19] Pfeiffer 294.


[20] Pfeiffer 294.


[21] UN General Assembly, Universal Declaration of Human Rights, Article 5. 10 Dec. 1948. 217 A (III). Web. 30 Nov. 2015.


[22] UN General Assembly, Universal Declaration of Human Rights, Article 9. 10 Dec. 1948. 217 A (III). Web. 30 Nov. 2015.


[23] UN General Assembly, Universal Declaration of Human Rights, Article 11. 10 Dec. 1948. 217 A (III). Web. 30 Nov. 2015.


[24] UN General Assembly, Universal Declaration of Human Rights, Article 25. 10 Dec. 1948. 217 A (III). Web. 30 Nov. 2015.


[25] Asamblea Permanente de Derechos Humanos en Bolivia, El Silencio de los Inocentes: Cien Años de Derechos Humanos en Bolivia. (La Paz: Capitulo Boliviano de Derechos Humanos, 2004) 164.


[26] “Historia: Construcción y Consolidación.” Defensoria del Pueblo. Estado Plurinacional de Bolivia. Web. 5 March 2016.