An Intersectional Approach to Colombian Transitional Justice and COVID-19

[Hayley Evans (@HayleyNEvans) is a 2019 J.D. graduate of Harvard Law School and an incoming Research Fellow at the Max Planck Foundation for International Peace and the Rule of Law. Priscyll Anctil Avoine (@Cyppp_) is a PhD candidate in Political Science and Feminist Studies at Université du Québec à Montréal (Canada) and the director of Fundación Lüvo, a feminist and antiracist collective.]

In Colombia, the COVID-19 crisis has seriously complicated an already tense humanitarian setting. As of December 12th, Colombia has had more than 1.4 million confirmed cases and 38,669 deaths from COVID-19, classifying the country as the 11th globally regarding case numbers and 12th in terms of deaths. Evidently, the country is facing a triple humanitarian crisis: a 60-year long armed conflict, a massive migration, and the current pandemic. How can Colombia implement transitional justice mechanisms in this critical situation?

Effects of COVID-19 on the ground 

The pandemic is having a disproportionate effect on women, migrants and refugees, indigenous, and Afro-Colombian communities. With conditions conducive to the spread of the virus including things like poverty, overcrowding, and insufficient sanitation, it is no wonder membership in certain marginalized groups is correlated with an increased risk of contracting the virus. And, as the WHO has warned, the poor and indigenous are more likely to die of COVID-19 if they contract it, given their differential exposure to socio-economic deprivation.

One reason for the pandemic’s disproportionate impact on certain populations is the selective implementation of the Colombian healthcare system and social determinants of health. A sub-category of the concept of the right to health under international human rights law, the right to available and accessible healthcare facilities, goods, and services is primarily derived from Article 12.1 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”). As a State party to ICESCR, Colombia is required to take deliberate, concrete, and targeted steps toward progressive realization of these obligations.  Despite having, in theory, universal healthcare, the Colombian healthcare system is administered in a way that fails to protect the vulnerable and marginalized. For example, 95% of municipalities in the Territorially Focused Development Plan regions (Programas de Desarrollo con Enfoque Territorial, “PDET,” or the municipalities that have been prioritized for the peacebuilding actions according to La Havana Peace Process) lack ICU beds. In one particular department in the PDET, Chocó, there are no public hospital ICU beds and a mere 27 ICU beds in the private system. This department has a population of a whopping 540,000, and is one of the most conflict-affected areas in Colombia. Similarly, there is a lack of hospital infrastructure in Afro-Colombian populated territories, like Tonga Darién Urabá, and many Afro-Colombian populations have pre-existing conditions that exacerbate the physiological impacts of the virus—like hypertension and diabetes. Although the Colombian government has taken measures to guarantee the right to health for Venezuelans migrants in Colombia, they still lack sufficient access to healthcare and other related social determinants of health. As for indigenous populations: 28% of their communities living in rural areas have access to sanitation facilities, and more than 63% of the indigenous population is below the poverty line. Overall, there are no ICU beds in five Colombian departments.

Another reason for the pandemic’s disproportionate impact is its economic effects. The right to health encompasses a wide range of socioeconomic conditions that promote conditions of healthfulness, including factors like food and nutrition, housing, and access to water and sanitation. Yet the government has been unable to manage the food insecurity of thousands of households, and communities have responded by hanging red flags to symbolize pandemic solidarity and a need for food assistance. At over 20%, Colombian unemployment rates are at their highest ever. Furthermore, the economic impact is particularly harsh for the 13 million workers operating in the informal economy. Measures making up the government safety net—including tax breaks, payroll subsidies, and alternative working hours—are primarily levied in formal economic environments. Thus, despite having pre-existing vulnerabilities like high risks of poverty, inferior working conditions, and an absence of adequate risk management instruments, workers in the informal economy are left out of key social and financial protection initiatives. Even when measures are implemented to holistically stem the effects of the economic crisis on the nation’s poor, high levels of corruption still work to prevent aid from reaching its intended beneficiaries. It is here that the International Labor Organization Standards on labor protection are highly relevant, as they contain guidance for safeguarding work during crisis, and for a human-centered approach to the crisis and crisis recovery.

The pandemic undoubtedly has gendered effects. Although more men are dying than women of COVID-19 in Colombia, mortality is only one of the effects of the virus. In Colombia, women spend twice as much time doing unpaid domestic and care work as men. In addition, while 74% of Colombian men participate in the labor market, only 53% of women do—where they particularly take part in part time, temporary, and informal jobs. Loss of sources of income in the informal economy have placed women and girls at increased risk of sexual exploitation. Women are also those hardest hit by quarantine measures. Isolation measures have increased the risk of intra-family and sexual violence against women and girls, with 77% of female victims of sexual violence asserting that that violence occurred in their home. In fact, during the quarantine, 167 women have been murdered, mostly by their partner, for a horrific total of 187 since the beginning of the pandemic. On top of that, the lockdown has facilitated the identification of social activists and their location: armed groups have taken advantage of the “institutional cracks” provoked by the governmental policies regarding COVID-19 to attack women and LGBTIQ+ groups.

The duty to protect the right to life under the International Covenant on Civil and Political Rights (“ICCPR”) requires States parties, including Colombia, to “take special measures of protection towards persons in situation of vulnerability whose lives have been placed at particular risk because of specific threats or pre-existing patterns of violence.” These persons include human rights defenders, indigenous peoples, members of ethnic and religious minorities, and victims of domestic and gender-based violence, and the measures of protection that States parties should take to protect life include those that address “widespread hunger and malnutrition and extreme poverty and homelessness.” While Colombia has certainly addressed the differential impact of the pandemic on certain communities—including through publication of guidelines for the prevention, detection, and management of COVID-19 cases for the ethnic population in Colombia and an order guaranteeing virtual access to justice for survivors of domestic violence—there is still a mass schism between policy and practice.

Implementing transitional justice in a pandemic

The pandemic has complicated the already difficult implementation of the 2016 peace agreement. Since March 2020, when the pandemic reached Colombia, 193 human rights activists and 44 ex-combatants have been murdered, for a total of more than 1,000 murdered human rights activists and 242 murdered ex-FARC members since 2016. The COVID-19 crisis has also diverted attention from massive protests in 2019 and horrific human rights problems. As the ICTJ remarks, “The current pandemic is not only a public health emergency, it is a crisis for human rights and for justice.” At the heart of this situation is the fact that those who receive death threats and are killed are often the same peoples who actively work to implement the peace agreement—especially indigenous, women, members of LGBTIQ+ groups, and people involved in the coca culture substitution. 

In this scenario, implementing transitional justice is a massive challenge. Duque’s government has been widely criticized for its low engagement with the peace deal. His government has been slow to operationalize the agreement, and used the pandemic as an excuse to further militarize Colombian life. On top of that, Duque’s administration has dedicated 10% more of its budget to weapons, while also assuming an “old debt” of  250 million dollars stemming from the health system.

Coupled with the Duque government’s inaction is territorial reconfiguration, as armed groups take control of the power vacuum left by the FARC-EP. In conflict zones, the COVID-19 crisis takes a different face: as the state fails to guarantee the security of the population, people live under armed group control. In the face of the sanitary crisis, armed groups threatened to “take the law into their own hands,” issuing pamphlets and death threats to people failing to comply with quarantine measures. Human Rights Watch confirmed that armed groups have imposed rules by force and violence to prevent the spread of the virus in at least 11 of Colombia’s 32 departments. Moreover, with the implementation of the peace agreement having broader implications for regional peace and security, what may seem a domestic policy issue actually has cascading effects.

Colombia was already confronting multiple challenges in implementing transitional justice before the pandemic. For example, the FARC-EP reincorporation began while the Colombian government was still confronting problems with paramilitary demobilization. COVID-19 has added yet another layer, particularly because access to justice is primarily virtual. On the one hand, this might facilitate greater access to justice by increasing points of entry to the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz) system. On the other hand, the war-affected regions are mostly rural and Internet connection is generally not guaranteed. Building peace from virtual platforms poses serious questions of institutional capacity, technological accessibility, and, also, of the “ability to build trust virtually.” With the pandemic slowing transitional justice mechanisms, the Special Jurisdiction for Peace is at risk of losing its political mandate to guarantee participation in seeking truth and guarantees of non-repetition.

According to the Truth Commission’s (La Comisión para el Esclarecimiento de la Verdad, Justicia, Reparación y No Repetición) Alejandra Miller Restrepo, peace and women are two of the victims of COVID-19. Restrepo contends that the pandemic has caused further marginalization of already vulnerable populations and exposure of social leaders to increased violence. In turn, possibilities for women to fully participate in the peace agreement’s implementation have eroded, despite the final text containing a gendered approach.

Towards an intersectional analysis of the pandemic in transitional justice?

We propose the adoption of an intersectional stance to analyze and respond to Colombia’s triple humanitarian crisis. A first step toward adopting intersectional measures, or policies that take into account multiple and overlapping oppressions, is exposing and recognizing the differential impacts of the pandemic on certain populations.

Secondly, it is necessary to de-universalize the measures taken to tackle COVID-19 and, by extension, to engage transitional justice in the midst of a sanitary emergency. Feminist international relations scholars have called our attention to the necessity of desecuritizing and demilitarizing the health sector and transforming and redefining concepts such as “security” to include engagement with  social, environmental, sanitary or political crises. As such, it is necessary to provoke translocal activism both in peacebuilding and in global crisis management: local actors are essential to community engagement. In Colombia, women’s groups, feminist collectives, and victims organizations’ longstanding activism is central to the consecution of transparency and truth seeking in transitional justice. Ensuring participation of such groups will also work to uphold the rights of victims to meaningfully participate in transitional justice mechanisms.

Third, an intersectional analysis regarding the imbrication between Colombia’s multiple crises should also take into account Internet access—both as it relates to COVID-19 and transitional justice mechanisms. In both cases, governmental authorities have legislated in a way that assumes equal technological access. Meanwhile, oppressive structures maintain class and racial divisions in access in most areas affected by the armed conflict. The UN Development Program and UN Office on Drugs and Crime guidance note on ensuring access to justice recognizes this digital access gap, and suggests that legal aid providers not only work to ensure these digitalized services are accessible, but also that they actively engage with populations to make sure they understand how to use the services and that they meet their needs.

Fourth, the current triple humanitarian crisis environment in Colombia calls upon an intersectional analysis of the relationship between healthcare and justice. Women shoulder the burden of the economy of care, a situation that has been further aggravated by the pandemic. This fact directly impacts women’s ability to politically participate in transitional justice mechanisms and truth-seeking commissions.

Finally, at the heart of the armed conflict lies many transnational interests such as drug trafficking, extractivism, and palm oil. It is central to include an analysis of how the dynamics of neoliberal capitalism’s implementation are impacting the daily lives of people in specific areas of Colombia, such as Valle del Cauca, Cauca, and Norte de Santander—to name a few. As such, an intersectional analysis should take into account the reproduction of social inequalities and how the current gaps in the implementation of the peace agreement is serving the interests of Colombian elites and transnational corporations.