The Law Forced Internal Displacement and The Construction of The State

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The Law, Forced Internal Displacement and the Construction of the State
John Larry Rojas Castillo*
This article focuses on the phenomenon of forced displacement and its relationship to the law and the problem of the social and political recognition of Black communities in Colombia. There is a brief discussion of the events that generate forced displacement of the communities of Riosucio (Choc) and a demonstration of how this process seems to involve a struggle between different normative forms defended by the armed groups who are fighting for territorial domination. Forced displacement reveals a strategy of w ar mediated by norms and, ultimately, reveals the crisis of citizenship in the Colombian state. In this context of uprootedness, in which the displaced become pariahs in their o wn land, these people for med a settlement in Paravand (Antioquia), out of which they organized the Saint Francis of Assisi Peace Communities . Through r ules and legal for ms based on their customs and traditions, these communities struggle to reconstruct their lives and to be socially and politically recognized by the state. Hence, from the perspective of the armed groups engaged in a process of strategic colonization, the law can be used to bring about displacement, while from the perspective of the Peace Communities, the law is revealed as an instrument in peoples struggle for their lives and land.
This article is an attempt to approach the problem of forced displacement in Colombia from a Philosophy of Law perspective. It attempts to understand how law is molded in the midst of the phenomenon of displacement, meaning how it is produced, interpreted and applied. Hence, it is an effort to carry out a study that is closely related to the socio-cultural context in which law emerges and is enforced. The philosophical aspect of the text is defined by the search for understanding, as it attempts to penetrate the specific case of displacement to bring to light and expose the deeper meaning of the struggle among the different types of law which are interwoven within it. This effort moves beyond description, as it seeks to reveal the sociopolitical meaning of the negation of rights implied by displacement as a manifestation of the crisis of citizenship in the Colombian state thereby showing how the law intervenes in the dynamics of war. To this end, I first present a simple reconstruction of the concrete case of displacement which gave rise to the Paravand settlement. Secondly, I demonstrate how different normative systems including communal, institutional, and those defended by the armed actorsare juxtaposed in community life, thus revealing that displacement is one of the strategies of political and military engagement. Furthermore, I will expose how valid normative productions occur in the Peace Communities and how processes of negotiation and recognition of the communities are shaped [in conjunction] with the state and the armed actors. This establishes a theoretical reflection which allows for a general perspective of the complex cartography of the dispute over the concepts of law and the role of law with regard to displacement.
* Chair of the Philosophy Department at the Corporacin Universitaria Minuto de Dios (Colombia). Professor of Philosophy at the Universidad Javeriana.
ILSA - Instituto Latinoamericano de Servicios Legales Alternativos. http:/www./ilsa.org.co/
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Finally, forced displacement is here recognized as a negotiation of the rights of citizens in which victims possess only their naked humanity, without the mask of citizenship which continually elevates them [to a higher status] (Agamben 2000: 81-93). Hence, displacement toys with the political life of humanity, as the main right violated in displacement is the right to be actively linked to other human beings in a communal relationship. Thus, respect for and protection of human rights cannot be secured merely by nominal membership to a nationality, but only when citizens and social groups are effectively recognized by the state. From a philosophical point of view, we might discover that it is only in the construction of a pluralist state that the different social and ethnic actors find effective recognition and are guaranteed concrete respect for their rights as citizens. Throughout this study I demonstrate how the Peace Communities utilize their legal systems and internal regulations to struggle to regain their lands and respect for their autonomy and, in this manner, for political recognition of their cultural and communal life. The Peace Communities are not anonymous conglomerates; they are organized groups of peopleparticularly Blacks who differ from the predominant culture and who, while sharing a common experience of tragedy, fight for recognition. We can thereby conclude that the law is a key element both in the struggle that generates displacement, and in the processes of peaceful communal organization that confront it.
THE CASE OF THE PEACE COMMUNITIES BORN OUT OF THE PAVARAND SETTLEMENT, 1997-1998
In the reconstruction of this case we attempt to refer to the events which generated the forced displacement from the Riosucio zone between the second semester of 1996 and the first months of 1997, which precipitated the settlement of Paravand and, subsequently, the Peace Communities. We will present a simple reconstruction of events, enriched with the narration of the protagonists of the process, which provides us with an initial general context which will allow us to comprehend the dynamics of the problem.
Initial General Context: Riosucio
Riosucio has special significance for the Urab region of the Choc and in the Atrato river basin given its biodiversity and the richness of its natural resources, as well as its commercial, geo-strategic and military importance. It is a zone of incomparable wealth, given the uniqueness of its biodiversity and its water reserves and natural resources, which remain largely unexploited (although woodcutting and shrimp industries are now being developed). Furthermore, the intermediate and lower zones of the Atrato River are incredibly fertile and perfect for cattle raising or agriculture. From the commercial perspective, the Urab region possesses great importance as a natural bridge between Central and South America and the Pacific and Atlantic Oceans, leading to important proposals to develop key mega-projects in the area. Moreover, this zone also has tremendous military significance as a jungle region which allows for ground communication between Central America and the [Colombian] interior, which in turn facilitates the flow of arms, the mobilization of kidnappings, and the shipment of drugs.1 As a consequence, this area has great geo-strategic and military importance on both the national and international levels, which prompts the insurgent and para-state groups to attempt to dominate it.
Arms trafficking and the mobilization of kidnappings have been recurrent illegal practices in this zone. Although the counter-state and para-state armed groups have repeatedly denied that the territory is used for drug trafficking, security and intelligence agencies consistently accuse guerrilla and paramilitary groups of such usage.
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The Territorial Conflict Between the Guerrillas and Paramilitary in Riosucio, The Process of Displacement and the Formation of the Settlement.
In this general context, the first months of 1996 gave way to an intense armed struggle among the guerrillas, the military, and paramilitary forces 2 for control of the rural zones of Riosucio. In this way, during the course of the year the paramilitary groups began to have an ever-increasing presence in the areas surrounding the municipal center of Riosucio which, since the 1960s, had been under the control of the FARC guerrilla and had lived under that groups law. This process of territorial dispute had begun around 1985 when Fidel Castaos groups3 took control of Santa Mara La Antigua; regardless, they had not engaged in significant confrontations with the guerrillas until 1995, when both paramilitary and guerrilla groups sustained intense combat in the area. Hence, throughout 1996 paramilitary groups committed massacres, murders, extrajudicial executions and disappearances as they sought to ensure military dominance. This assault led to the permanent intimidation of the population and to multiple images of terror, which in turn led to the massive displacement of peasants to the municipal centers of Riosucio, Turbo, Quibd and Crdoba during the second half of the year. In December of that year the paramilitary achieved full dominance over the urban area of Riosucio. Bombings by the Army and the National Police accompanied the arrival of the paramilitary, whousing the slogan, we are the Self-Defense Forces, were come to clean up the towntook hostages, assassinated members of the JUCO (Communist Youth) and community leaders, and set up a blockade to keep food and gasoline from the residents of the rural areas of the village, arguing that many of those staples would end up in the hands of the FARC and that their strategy was thus to starve the guerrillas to death. The guerrilla responded to this paramilitary takeover with an attack by its 57th and 34th Fronts on January 9, 1997, in which five residents were killed, seven were wounded, and the population was massively displaced. Moreover, as they retreated, the subversives passed through the hamlet of Nueva Luz and Los Manguitos, where they decapitated seven peasants after accusing them of collaborating with the paramilitary (El Tiempo, 5 March 1997, p. 9). During the last days of January and the first 20 days of February, the pressure on the population grew steadily worse, given the imposed limitation on food and the continual confrontations between the guerrillas, the paramilitary, and the Army. During the early morning hours of February 24, 1997, an intense bombardment was launched on the township of Bocas de Taparal and later throughout the Salaqu river canyon. The bombings, which continued throughout the day, provoked the displacement of residents who had lived in the region for more than 30 years, mostly Black communities made up by women and children without clothes or shoes, who, in the words of the displaced, left their property and possessions behind in the hot bonfires. In the process of displacement which followed these confrontations, many people had to go into jungle areas in which they got lost. Some pregnant women had to give birth under these conditions and some children fell ill. In one month, between 2000 and 3000 peasants searched for the highway leading to the ocean, in the upper Turboa goal which only a few achieved, while others were forced by the Army to stop in Paravand, a township of Mutat.4
3 4
In the districts (corregimientos) of Alto Riosucio, Bajir, Boca de Curvarad, Cacarica, Chintad, Domingod, Jiguamiand, La Gr ande, La Honda, La Larga, La Raya, La Teresita, La Travesa, Peye, Salaqu, Truand, Tumaradocito, Turriquitad, Viga de Cur varad and Villanue va. Also around the police stations of Isla, Sautat and Tamboral. Paramilitary groups with ties to drug trafficking (proofreaders note). A great many Afro-descendents, indigenous people and mestizo peasants from the communities of the Cacarica River Basin were also displaced in the course of the fighting between state armed forces, the para-state forces, and the counter-state forces. In contrast with those who arrived in Para vand, these communities sought refuge in the Coliseum in Turbo or fled to Panam, where some of them were subsequently depor ted to Cupica bay. Even though these groups did not call themselves Peace Communities, they did develop a very important experi-
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The authorities of Riosucio maintain that most of the farmers and woodsmen arrived as hostages of the guerrilla, and that that was why they tried to separate the women and children from the group (...). For General Rito Alejo del Ro, Commander of the 17th Brigade, the trek to Mutat was an opportunity to sneak up on the FARC in order to capture the route to the sea for the third time (El Tiempo, 1 April 1997).
Accused by the Army of collaborating with the guerrilla, the displaced settled into Paravand during the last days of March and the first days of April 1997. They had to pledge that they had no plans of taking over the road to the sea, but that they did have hopes of urgent medical attention and the possibility of establishing direct contact with the national government in the hopes of obtaining guarantees to return to their lands. They also explained that their exodus from the region was due to the paramilitarys threats and accusations of being guerrilla collaborators, and to the guerrilla warnings insisting that if they did in fact leave, they would be obeying a paramilitary order and would not be allowed to return.5 In this way, the intense, warlike confrontation for territorial hegemony placed profound and continual pressure on the communities, to the point of forced displacement; hence, it is important to move beyond simply identifying the immediate author of such orders. Rather, it is necessary to point out how the struggle for territory and the intense bombings lead to the victimization of the Black peasant communities. Throughout 1997 new paramilitary attacks caused new processes of displacement, which brought the number of displaced settlers to around 5000.
Community Organization in the Settlement
During the first few days of the settlement, people found themselves forced to sleep out in the open air on sheets of plastic in cattle fields. Later, due to the efforts of several NGOs,6 the Ministry of the Interiorthrough the Office of Human Rights and in conjunction with the Diocese of Apartad built zinc shelters which were then occupied by each of the 49 different communities that arrived at the settlement. In the face of their problems and needs as refugees in precarious humanitarian and security conditions, and using as a foundation the organization that had existed prior to the displacement, each community organized itself into Community Counsels with a legal representative and a board of directors. At the same time they created different committeesmade up of representatives selected from each communityto find solutions to their problems or to obtain resources from the NGOs or the government itself. It is worth emphasizing the importance of these Community Counsels, which were instituted by virtue of Decree 1745 of 1995, which is in turn regulated by Law 70 of 1993. In some of the communities, these Counsels were organized before displacement with the goal of reclaiming collective rights to their traditional lands. Once they received title to the land through the INCORA (Colombian Institute for Agrarian Reform), they established maximal administrative authority over the land in accordance with the Constitution, as well as over the effective legal norms and the unique legal systems of each community (Decree 1745, 1995). This communal process is worth highlighting, since the 1991 Constitution and Law 70 of 1993 had recognized not only the Black communities communal land rights, but also their rights to their own culture and customs. With this law the Black communities achieved a measure of autonomy to administer and organize their territory through their own legal systems.
ence of peaceful community resistance. Given the fact that these communities not only share cultural and ethnic ties, but also have suffered the pain of displacement and cultivated a project of community organization, it is important to study their experience in order to attain a better understanding of the struggle of Black communities to be recognized as political and social actors. See COMUNIDADES DE LA CUENCA DEL CACARICA (2002). See El Tiempo April 1, 1997 and El Mundo April 2, 1997; El Tiempo March 7, 1997. Among the organizations that provided vital support to the comm unities were CINEP, Justicia y Paz, Caritas, the diocese of Apartad and the Lauritas and Dominican communities of religious women. For more on this, see HERNNDEZ (1999).
5 6
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Because the zone of Riosucio has traditionally been inhabited not only by the Black communities, but also by the chilapos (mestizos) and paisas (white immigrants from Antioquia or Crdoba), from the very beginning, the difficult experience of the settlement led all the displaced persons to consider communal life as a way of organizing their subsistence processes and their struggle for political and social recognition. Precisely because they shared the traumatic experience of being forced to break their ties with the land on which they had forged their livelihoods over long periods of time, the members of the different ethnic groups understood the importance of, and the need for, solid community organization. In the words of one of the settlements inhabitants:
(...) [T]he violence caught us alone, by ourselves; each one of us was out there on our farm. We lived peacefully and quietly but it caught us and destroyed us. And the reason is that we didnt have a community to support us. Then we all became aware of the importance of a community that supports you, and thats what we started talking about in Paravand (CINEP 2000).
In this way, the role of the aforementioned committees was to organize communal life in the settlement through rules which regulated the most common practices in the community, such as washing clothes or bathing in the river or going out to search for firewood or food. All of the members of the settlement were familiar with the rules and had to follow them strictly, since they themselves had developed them. Moreover, the settlement was surrounded by the Army to guarantee the communitys safety. Thus, the rules also stated that no resident of the refuge could leave without permission, and especially not alone or at night.7 These normative systems also stipulated that no inhabitant could be armed or have business or conversations with outsiders or armed groups, or sell them food or drink. They also established penalties and punishments consisting of community service for those who violated the rules (Saint Francis of Assisi Peace Communities 1997). It is important to highlight how the processes of displacement, the foundation of the settlement, community formation and even the initiation of the process to return to community lands, are marked by the terror caused by the continual pressure of the armed groups, which constantly intimidated and harassed the settlement by assassinating or disappearing its members, offering money to residents who abandoned their communities, and intimidating the leaders. Community life was always threatened by possible attacks, either by the guerrilla or the paramilitary. Paradoxically, these methods of pressure led to the continued consolidation of even stronger ties of solidarity, loyalty, and faith in the social project underway. In the actions that denied the rights of the community, the residents found the catalyst which strengthened their unity, solidarity and fraternity.
I think that part of the work of the peace communities, this work of community participation, comes from the notion that we peasants acquire a collective responsibility. W e think we need a project [based on] communal living. And that, the way things are, individuals and the community in general need to have that really clear in order to defend [themselves] and move ahead. So, if you have a community with rules, with representatives and different work committeesa community that is organized in some way, then you can talk about any aggressor or at least you can say what their agenda is, what their program is, and what their interests are (CINEP 2000).8
These measures, along with the permanent pressure the settlement was subjected to by the armed actors over a period of months, practically turned the settlement into a jail for the inhabitants. On the other hand, this extreme situation allowed them to develop a strong sense of community. There are many studies on the project of the Peace Communities as a form of community organization which allows for the vital reconstruction of [the lives of] those who have experienced displacement. These studies come from such varied fields as psychology, social w ork, and political science.
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For the residents, the settlement was not just a space in which to maintain their physical subsistence, but rather a place where they could begin the vital process of reconstruction to fight for their rights, which was marked by experiences which taught them to respect their differences and to see themselves as a united group. Hence, the deep wounds of war began to be healed through encounter with other people and the construction of a project of communal living.
When you have to be displaced, it rips you out of your homeland. A displaced person doesnt even know who he is. But maybe you find out that you live with your family, that you have a community and people who you can struggle with and work with. When people trust not even believe so much as trust, when people put their faith in others who come to help out, who are working out an entire process, then they rediscover that they exist (CINEP 2000).
In this sense the deep nostalgia for the land and the pain caused by the loss of daily life began to propel the reconstruction through a communal process that started to shape the settlement. In conclusion, the processes of communal living which arose from the painful experience of displacement, overcrowding and near imprisonment in the settlement of Paravand made its residents aware of the importance of community organization as a way of rebuilding the processes of individual and communal lives, as well as [its utility] as a way for demanding their rights. Based on the cultural and social practices that existed before displacement, they established rules whichas normative systemsreflected the autonomy of the communities to self-regulate their communal life and adopt neutral practices to face the armed actors.
The Peace Communities of Saint Francis of Assisi
We can understand the meaning of the peace communities in the context of communal life, combined with processes of normative organization. These processes were born as a strategy of the communities of the Pavarand settlement to be able to return to their lands and to obtain respect for their lives and property from the armed actors, as well as to prevent further displacements. How can territorial control and mechanisms for civil protection be established without arms? That is the complicated question posed by these communities, keeping in mind their fragility in the midst of the surrounding war. At the same time, their profound political force is rooted in this search for solutions. The path chosen by the 53 communities 49 initially and 4 that arrived in 1997, as laid out in their declaration of October 19, 1997, was to isolate themselves from the armed conflict. Their members made a public commitment not to carry arms, not to give out information, not to give any strategic advantage to any group, not to receive any member of an armed group onto their land, and to seek a negotiated solution to the conflict (Saint Francis of Assisi Peace Communities 1997). In this way, by assuming a position which actively denies their participation in the conflict, they were able to identify their interests as [members of] civil society: to be able to occupy their lands, to have autonomous control over their internal organization, to develop their culture and customs with the hope of having their sovereign decisions respected by all the armed actors in the conflict. Hence, the peace communities strategy is to find protection not through arms, but through their neutrality, by actively denying the war tactics used by the surrounding armed actors. This proposal was not an attempt to violate the Constitution or its laws, nor to oppose the state; it was rather a methodology emerging from communal living to reclaim an autonomous territorial space in which it would be possible to exercise fundamental constitutional rights.9 That is why, prior to the proclamation, the communities convened an in-depth process of formation in which all of their members were instructed on the meaning and implications of the declaration.
In order to understand the spirit of the proposal, see ENCUENTRO NACIONAL POR LA CONSTRUCCIN DE LA PAZ, Neutralidad Activa, Declar acin Final, Medelln, May 22 and 23, 1997.
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Furthermore, the communities informed the different armed actors of their intentions, and each of those groups agreed, in one way or another, to respect the decision. Later the communities, which were each in agreement with the internally defined processessome through collecting the signatures of each of their members, some through representativesdecided to undertake the commitment of becoming Peace Communities (Hernndez 2000). After the declaration, a board was set up to negotiate with the state in order to define the conditions of return [to the land and their abandoned homes]. This first board was supposed to postpone discussion of the other points surrounding the formation of the settlement.10 In this process the communities prepared a proposal of a socio-political package encompassing all of the aspects involved in their return, such as title to their lands in fulfillment of Law 70 of 1993, the organization of the different groups, the selection of the exact zones where they would begin and the characteristics of the settlements. After a process of careful reflection, the communities decided not to return directly to their parcels of land, but to instead move to seven different sites on their territory with the goal of advancing little by little and covering as much ground as possible until they could relocate onto their original property. In December 1997 the negotiation process began between the Peace Communities and a commission made up of the Church, CINEP [Center for Research and Popular Education], the Presidential Counselor for the Displaced, the Ministry of the Interior, INCORA and others who were accompanying the process. During this same period before the accords were signed, the communities began their process of return, which would continue until September 1998. The communities return to their lands was marked by intense guerrilla and paramilitary attacks, both on the settlement and on the communities that had returned.11 In conclusion, the declaration of the Peace Communities allowed them to establish social practices which restored the lifestyles of the displaced and to fight for their rights. As a result, the communities designed a normative system and, through their public declaration, established an active political position which affirmed their neutrality with regard to the political-military agendas of the various armed groups. Those groups, in turn, committed to respecting the decisions of the communities, although to this day they continue to harass them and pressure them to disband. With regard to the state, its political status allowed it to negotiate the return. For the first time these historically excluded communities gained social visibility.
THE CLASH BETWEEN LEGAL SYSTEMS AND THE CONSTRUCTION OF THE STATE WITH REGARD TO THE PEACE COMMUNITIES
In a theoretical reflection that allows us to understand how law is shaped in the midst of a politicomilitary struggle for land, it should become clear how, in this case study, there is a juxtaposition of, and a confrontation between, normative systems emanating from the state and systems guided by the concept of self-defenseeither guerrilla or paramilitary, thereby devolving into a clash between different forces. Displacement and the creation of the Peace Communities are part of a context of regional conflict marked by law, in which the law itself is also an instrument of war. I will show how displacement becomes one more strategy in politico-military confrontation and how the Peace Communities organized valid normative productions, as well as how they shaped the processes of negotiation and political recognition of the communities in the face of the armed actors. I will show that one cannot propose a defined and stable concept of law. Rather, I reveal a cartography or framework in which several concepts of law overlap in a clash which is symptomatic
10
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Subdivided into three other boards: Security, Return, and Title to Land. Drawing upon Law 70, the board drew up 16 points of organization. For more on this period in the process, see Batalla a las puer tas de campo de desplazados, in El Colombiano August 6, 1998, p. 8A.
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of the political confrontation over sovereignty which is at stake in the region. In the confrontation of legal forms which embody the interests defended by the different armed groups, the community efforts toward the vindication of their social and political rightsthrough an active and sovereign attitude against the warbecome vital.
Strategic Colonization and the War in the Construction of the State
In the Urab region, and specifically in the Riosucio zone, the traditional presence of Black and indigenous communities with a distinct cultural identity has allowed for the consolidation of land holdings. Nonetheless, as has already been discussed, after the 1960s, the FARC carried out processes of colonization in which poor peasants began to occupy land with the intention of working under better conditions in the most lucrative agricultural sectors in the region, such as the banana plantations. Along with the peasant colonization came the ideological activity of the Communist Party. During this time the FARC adopted a self-defense role within the communities, meaning they acted as private, armed defenders of the community in order to protect their social rights against the arrival of large, industrial banana companies into the region. Meanwhile, the EPL [Peoples Liberation Army, a smaller guerrilla group] used the same tactic in the northern part of the region to spur peasant invasions of large tracts of land.12 This process, which according to Mara Teresa Uribe (2001) could be described as strategic colonization, 13 sought peasant control of the land, developed agricultural production and organized social practices under the leadership and territorial defense of an armed group, thereby allowing the guerrilla to form social bases by defending the rights of poor peasants in their demands for land and by stimulating the very development of the communities.14 In this sense, the population, organization and control of the region were of major importance to the FARC, as they relied on a tactic of territorial domination which guaranteed the strategic collaboration of the communities and, at the same time, sustained the legitimacy of their political struggle.
Politico-Military Power and Normative Systems
The guerrillas normative systems, based on the concept of self-defense, played an important role in the development of this politico-military project of colonization and territorial control, since the effective and efficient regulation of daily life by private or insurgent groups stood in contrast to the inefficiency and distance of the official legal order.
The guerrillas have politico-military control in the zone. But they want the communities to organize themselves, too. And since they were the authority, they demanded that the communities work on things like cleaning the rivers, learning how to live together, and that sort of thing. Their idea is that the community should be organized to achieve its objective, whatever that may be. The problem was the people who didnt want to work in the community, or
12
13 14
Hence, as Mara T eresa Ur ibe (2001) points out, the concept of self-defense cannot be associated exclusively with the current right-wing armed groups. It is rather an idea that attempts to justify regional military activity based on the defense of the interests of the regions inhabitants in order to achieve not only logistical support, but also legitimacy and social recognition. See URIBE (2001). See Uribe (2001). These processes of consolidation of community leadership are made clear through the influential activity of the Patriotic Union Party (Unin Patritica-UP ) in the 1980s. For example, the UP helped 1,000 peasant families invade the outlying areas of the Sena and the daycare in Apartad. The peasants were later relocated to the La Chinita hacienda. In the same way, the UP also participated in the formation of the Policarpa Salavarrieta de Bogot barrio. The UP showed its political force in the first popular mayoral elections of 1998, in which the UP won the mayorship of several municipalities in the Choc and Antioquia. See URIBE (2001).
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especially the people who made mistakes, like stealing, for example, and they would be caught and judged (...). But, what happened was that they became like the law; they were basically the law out here in the rural areas. Like they said: were the peoples army (CINEP 2000).
As occurred in other parts of the country where FARC guerrillas have exercised their power for many years and where the peasants acknowledge their authority, the armed group designed norms to consolidate the legitimacy of their political agenda (Molano 2001). At this point it is important to refer to the research of Alfredo Molano on guerrilla justice to see what contributions he offers for understanding such forms of law, in order to determine whether there are any contrasts between that form of law and the image of law revealed in the displacement case. Molano points out that the guerrilla, after achieving military dominance in the area, organized legal systems which were respectful of the communities, such that they allowed the communities to study their own conflicts and establish sanctions based on their belief systems. Once the community established a process and defined a sanction, the guerrilla monitored its enforcement (Molano 2001). Such forms of law are based on a concept of customary justice (justicia consuetudinaria), meaning that they are founded on the traditions and values of peasant life. According to Molanos study, these legal forms are able to guarantee social stability in the regions under guerrilla hegemony and are a community achievement that supercedes the arbitrary judgments made by the guerrilla commanders during their attempts to consolidate their sovereignty. This was partially realized in the case studied here, since the guerrillas had influence in the organization of community life of the Black and mestizo communities dating back to the 1960s; in this respect the communities didnt just learn from the guerrilla how to live together, they also saw in their norms the tools to solve daily conflicts. It is imperative to stress that the organization and configuration of the systems of guerrilla law followed a military agenda which sought control over land through the formation of social bases. That is why the anti-state groups went to great lengths to ensure that their forms of justice were not arbitrary or capricious, as that could lead to social rejection which might in turn endanger their fundamental objectives. Such forms of law have strategic colonization as their objective in that they entail the submission of the peasants to the norms and, ultimately, their adherence to the political ideologies associated with [the guerrillas] national agenda. The peace established by guerrilla justice presupposes and establishes social homogeneity, as it is based on an idea of the law as rigid and stable over time, and in which norms should be accepted without hesitation by those living under them. As a result, community decisions are not autonomous, as they are only respected provided that the guerrilla is first recognized as the authority. 15 Once regional military power is consolidated and the social bases which legitimate this power are established, it is understandable that normative systems might appear which distance themselves from the initial arbitrary and contingent actions. Hence, once the guerrillas military hegemony over an area is called into question, the social organization becomes shaky and the relationship between the guerrilla and the population reverts to practices of territorial combat. The guerrillas legal forms become contingent, given that the social order defined by the normative system presupposes the hegemony of a single armed power and, therefore, the submission of the community will to a single groupall of which is called into question once the paramilitary invade a region. With regard to this case study, in the scenario of the struggle for land between the National Army and the guerrilla and paramilitary groups in the late 1990s, the legal processes which imposed
15
This reveals how the guerrilla struggle assumed the establishment of a homogeneous state defined by respect for guerrilla authority and customar y law.
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punishment were at the same time compensatory and instructive, in that they neither sought a clear justice, nor demanded the respect of the communities.16 Thus, recognition of the guerrilla norms and fulfillment of their demands do not ensure full recognition of individual rights, such as freedom of opinion, so that people could be forced into silence. In effect, it is not a normative system that respects the rights of its subjects; rather, it is an imposed system which manipulates its subjects through fear. Hence, in this context we can understand how the guerrillas active processes of community development served a clearly strategic purposeboth politically and militarilyand did not, in any clear or defined sense, involve the development of autonomous social and communal institutions. In this context, the state or para-state strategy involves political and military confrontation, of which displacement is one of the most important tactics. Displacing a population is part of the war waged not only against armed groups, but against the social bases which (allegedly) sustain their presence in the region. As a consequence, the processes of displacement, as a strategy of war, are not caused by any specific armed actor, but rather by all of the groups involved in the struggle. In this case the attacks by the Army and the paramilitary were accompanied by processes of intimidation, threats, and efforts to fill the population with terror in order to induce displacement, making way for resettlement of the region by groups who were supported by the victorious armed actors. To the extent that war is played out through different, opposing norms that directly violate the communities way of life, the conflict also represents a struggle between the different normative forms fighting for social recognition. For example, if a community is displaced by a paramilitary order which contradicts a guerrilla norm, this is interpreted by the guerrilla as a betrayal which merits the sanction of exile.17 The war for territory turns the civilian communities into tactical resources in the confrontationsometimes as human shields, sometimes even as instruments of war, thus the norms which regulate their behavior become instruments of displacement.18 As a symbolic and tactical form of territorial displacement, normativity also explains displacement. War is not, therefore, reduced to armed confrontation, but rather adopts forms of intimidation based not necessarily on bloodshed, but also on norms. Hence, even though it is possible to find normative systems under the hegemony of the guerrilla which ensure peace, it is also possible to find an image of norms of war that emerges from the dynamic of combat over territory in which the different warring groupsno longer just the guerrillagenerate displacement. This type of aggressive norm appears precisely when the military hegemony of the dominant group is at risk.
The condition of the forcibly displaced in Colombia does not place them outside of the grasp of the law (...) their luminal situation is due to the fact that, due to the dispute over sovereignty, they live under several [legal] orders capable of sanction and punishment, but with limited capacity for protection and no effective recognition of rights. Hence the complication of punitive, authoritative and patronizing norms ends up replacing the certainties provided by law due to the permanent incertitude of arbitrariness and randomness. Security is traded in for permanent risk as territory changes hands. The environment of mistrust is accentuated; activities in the public sphere are restricted to the opaque world of the private and the
16
17
On this point, Molano explains that: Beyond execution, there are compensatory punishments that are imposed both on the guerrillas and the civilians. For example, a guerrillero found sleeping on his or her watch must carry logs or dig trenches as punishment for the danger to which he or she subjected the community. There are also punishments that are intended to set an example. In the case of infractions committed by community members, for example, a thief may be forced to build the community school (Molano 2001). Our study shows that these concepts of guerrilla law become problematic in the process of displacement, as displacement implies that the dominant armed group in the region has lost its hegemony. Ibid see supra.
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domestic. All of this shapes a climate of collective fear sufficiently overwhelming to induce exodus and the diasporas of the population (Uribe 2001, Vol. 0: 67).
Hence, displacement is shaped by the confrontation between different political-military agendas that express their conflict through norms. Law, in the case of forced displacement, is a strategy of war, the main point of which is not the defense of the life and autonomy of the communities or respect for their rights, but rather to instill terror.
Sovereignty in the Balance and the War for the Construction of the State
With regard to the meaningful presence of the state and the legitimacy of its institutions and powers, it can be deduced from everything said thus far that the formation of state structures in the region is marked by an intense politico-military conflict and by strategies of territorial domination and the negation of due recognition for the communities. In this process it may be said that the presence of the state throughout the 20th century has been formal or administrative or military, and rather than instituting legal systems for social relations and political control, it has enacted counter-powers or para-powers outside of the institutions of the state apparatus (Uribe 2001). Thus, even though formal institutional structures have long existed in the regionthe mayors office, the police station, etc., these institutions have not been able to generate practices over time that allow the local residents to exercise their rights as citizens.19 The residents, therefore, do not view the state as the guarantor of their rights, but rather as a bureaucratic structure far removed from their daily community life and therefore ineffective in the legal regulation of their conflicts.
The people of Urab do not see in the legal system the notion of balance for the resolution of their conflicts. On the contrary, mistrust and indifference are notorious and contribute to the increasing levels of impunity (CINEP 1995).
It is precisely this incapacity on the part of the states legal systemand the vacuum left by this incapacitythat prevents the state from regulating the concrete social lives of the inhabitants. [This absence of the state] also allows for the incubation of the armed actors, who justify their activities by claiming to defend the isolated communities. Moreover, the state, rather than being the guarantor of the populations rights in the region, is one more actor in the war. 20 Its tactics have consisted not just in taking part in the military confrontation, but also in unsuccessfully seeking territorial dominance in the region, which has also included, in the words of Mara Teresa Uribe:
[T]he de-institutionalization of the monopoly of force [through] a selective absence of the state. [This can be seen] in the legislation relating to criminal penalties for the violation of human rights and when the state gives a green light to delinquency in joint military-paramilitary operationseither simultaneous or successivesuch as the case of the Army bombings that preceded the arrival of armed paramilitary forces. All of this de-institutionalization of the monopoly of force by the state reverts directly to the conditions of its political legitimacy (Uribe 2000, 2001).
The phenomenon of the de-institutionalization of armed force in which the state supports paramilitary groups is not an attempt to reinforce its military power or sovereignty, since in the areas under their conquest the para-state groups impose a normativity with the same self-defense characteristics examined above. One of the most common practices of the paramilitary groups is to put themselves above the civil authorities by imposing their law, which violates the stability and legitimacy of the state in the region.
18
19
20
The reference to instruments of war implies the use of civiliansin some cases minorsto carry bombs to be detonated against members of the armed forces. An example of this is the large number of grown adults without national identification cards (cdulas de ciudadana), many of them women. See ACNUR (2001). See COMUNIDADES DE LA CUENCA DEL CACARICA (2002).
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On the other hand, the economic and social inclusion of the region in the nation has been mediated by the development of private companies, especially in the banana industry; a process in which the state has opted for the interests of the industrialists and not for the communities interests. The Black, peasant and indigenous communities in these zones have been fully and effectively recognized or included into the nation as such. The ancestral traditions, customs and mores of the inhabitants have been left aside in the midst of the process of strategic colonization, along with the political and military processes that have paved the way for such a process. Apart from the processes of territorial war which we have already describedwith the many problems this entails for community recognition and the definitive recognition of the institutions of the state, we could say that the armed confrontation that we are experiencingof which Urab is but one regional manifestationreveals the open dispute for state sovereignty in the regions. It is, therefore, a political-military struggle in which the sovereignty of the state is permanently in the balance. In this process, different agendas for national construction, including that of the guerrilla, the paramilitary and the state itself, are intertwined in a war which uses the regions as its stage and forced displacement as one of its cruelest strategies.21 The confrontation for territorial dominance involves a complete juxtaposition of norms, in which state sovereignty permanently totters, in which there is a war over different conceptions of nation and in which the state structurefar from fulfilling its legitimizing function as guarantor of fundamental rightsends up participating in the very strategies of war which violate those rights.22 Moreover, through its military plan, the state calls into question its regulatory function by de-institutionalizing the monopoly of force through its relationship with paramilitary groups. As a consequence, the state is unable to unite and define the social order in a given territorial sphere.
Legislation and Recognition of the Political Agenda of the Peace Communities
The common factor in the laws of the actors in the conflict is the lack of acknowledgment of individuals subjective rights and the denial of the communities full autonomy in the attempt to establish a homogeneous and disciplined society. Yet, starting from this core aspect, I would like to demonstrate that the Peace Communities display a political agenda whose richness is based on the non-violent affirmation of their condition as citizens, which constitutes the basis of their struggle for recognition. In the face of the juxtaposition of armed normative structures seeking to establish a national agenda, the Peace Communities organize themselves as a space for human action that seeks the concrete construction of a state which recognizes and represents the ethnic and cultural diversity of all Colombians. It is, therefore, a form of political organization that attempts to turn constitutional principles into concrete realities (1991 Political Constitution of Colombia).
The 1991 Constitution: Political Recognition of the Black Communities
At this point I would like to present the fundamental constitutional and legal principles that serve as the basis for the Peace Communities, in order to clarify the meaning of their proposal for the construction of a pluralist state based on ethnic diversity in the face of the military agendas of the nation-state. I will show that one cannot separate the formation and meaning of the Peace Communities from the process of building a social movement of Black communities as social and political actors, as recognized by the 1991 Constitution. The participatory way in which the 1991 Constitution was written allowed many marginalized sectors and groupssuch as the Black and indigenous communitiesto be recognized as political and social actors. This process realized the longings of these groupsand of the stateto develop
21 22
See URIBE (2000, 2001). One of the risks of executing Plan Colombia is the intensification of internal displacement as a consequence of the worsening of state militar y activity. On this point, see VERGEL (2002).
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a democratic modernization, meaning the construction of political and social spaces based on the need [to guarantee] the fundamental rights of citizens, spelling out the social, economic, cultural, environmental and political aspects of such rights (Agudelo 2001). As a result of this effort, the National Constitution expresses in its principles that Colombia is a social state of law, organized as a united and decentralized republic which is democratic, participatory and pluralist and which provides autonomy to its various territories. Article 7 adds that the state recognizes and protects the ethnic and cultural diversity of the Colombian nation, as is its obligation, as affirmed in Article 8, to protect the natural and cultural riches of the nation. 23 Additionally, Article 70 of the Constitution affirms that culture in its diverse manifestations is the basis of nationality. The state recognizes the equality and dignity of all those living in the country. The state will promote the research, study, development and diffusion of the cultural values of the nation. Based on the above, the Black communities, whose organization is the origin of the Peace Communities (Hernndez 2000), have utilized the constitutional process to defend their own cultural and ethnic identity, which also implies the need for full state recognition, protection and cultivation of their values, traditions and customs. Following in the footsteps of the indigenous groups, the Black groups have achieved constitutional recognition as communities24 with specific cultural characteristics that differentiate them from the rest of society. This cultural identity is manifest in the oral tradition used to express history, traditions, magical-religious beliefs and the specific forms of social relations within these communities (Agudelo 2001). Hence, we can see that the political constitution and the legal system which it establishes are motivated by a pluralist political spirit which respects and promotes the different cultural entities and forms in existence within Colombian territory. Thus, there is no presumption or promotion of a single cultural identity which creates a homogeneous social life.
Ethnicity and Property: The Political-Legal Origins of the Peace Communities
The demands of the communities are made manifest in their political struggle for ownership of their land and for their ethnic and cultural identity. Defense of the land, as a geographic space in which the Black communities have developed their lives over time, becomes a claim with a basis in transitional Article 55 of the 1991 Constitution and serves as the legal basis for the struggles of the Peace Communities. For the first time, the Black Communities of the Pacific are made visible as a social movement; hence we discover that the ethnic and cultural demands become a fundamental element in this case study, in that they determine the shape of this new social and political actor.
For the first time the Black population of Colombia (of the rural Pacific) was the subject of specific rights and recognition. In general, the factor that motivated the launch of this great movement along the rivers of the Pacific was, for the populations there, related to the possibility of accruing concrete benefits (land ownership) and linked to a process of identity affirmation; that is, to the act of recognizing themselves and being positively recognized by the wider society which had always considered them inferior. The self-recognition of their cultural identity became a prerequisite to obtaining territorial rights, as laid out by the Choc (ACIA) and indigenous models (Agudelo 2001: 3-31).
Hence, in transitional Article 55, the constitution ordered the state to enact a law which recognizes the Black communities that have occupied uncultivated lands in the rural zones along the river banks of the Pacific Basin, and to grant them the right to collective ownership over the areas stipulated by the law itself in accordance with their traditional production practices. The political
23 24
See Political Constitution of Colombia. This term is only utilized to define those organized groups [...] made up of the Black population which link their par ticular claims to the specificity of being Black, as stated in the 1991 Constitution. See Agudelo (2001).
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charter also established that the law define mechanisms for the defense of cultural identity and the rights of the communities in order to encourage their economic and political development. In compliance with this constitutional mandate, Law 70 of 1993 recognizes the rights of the Black communities to communal ownership of the uncultivated lands that they have traditionally occupied, in accordance with their traditional practices of production.25 This concept is an attempt to defend the communities traditional customs and labor practices in the face of the many private, industrial techniques which place their land ownership at risk. The communities work on the land shapes their identity, their way of building their houses and of living their lives; thus the defense of these production practices is the struggle for cultural life itself. This norm also establishes the different public policies designed to protect the cultural identity of the communities as an ethnic group, as well as their social recognition in the national context. In this sense, the law stipulates that, as a pluralist nation, Colombia create effective recognition of the Afro-Colombian culture as a valued part of society, avoiding segregation, racism and social discrimination (Law 70, 1993). On the other hand, the law stipulates that collective ownership of the land is ruled by the principles of ecological care of the areas resources. Hence, the state must ensure that the different projects of environmental and forest-based exploitation are guided by these principles and must see thatin the process of developing traditional forms of productionthe Black communities have priority in the adjudication of contracts or the distribution of permits for exploitation in the area. In this perspective, the state is obliged to encourage the economic and social development of these communities by attempting to guarantee conditions of equal opportunity with the rest of society. 26 The crucial idea established by this law is that each community should be legally recognized and represented within the Community Council, which is the highest internal authority and is responsible for the administrative organization of the communitythat is, the internal adjudication of land to individuals or familiesin accordance with the social and ecological function of ownership. Moreover, the Council defines an internal regulatory code that assures the protection of cultural identity, the environment, and social organization.27 Decree 1745 of 1995 establishes the organization of the Community Councils in greater detail and the necessary procedures for granting land titles.28 This last norm means that the community, as a legal entity, defines its internal rules based on the constitution, legal norms, and its own system of law.29 In this sense, the decree recognizes the legal validity of the community norms and regulations. The Colombian normative system grants legitimacy to the forms of law based on the communities culture, history and customs; thereby validating a central element of community life. Precisely because of that fact, as soon as the Peace Communities establish Community Councils, the norms and regulations that organize their social life in the face of armed groups obtain legal validity. The decree in question establishes that the legitimacy of the decisions of the Community Councils is based on the will of the majority of its members, either by consensus or, when that is not
25 26 27
28
29
See Political Constitution of Colombia (1991), Law 70 (1993). See Political Constitution of Colombia (1991), Law 70 (1993). It is relevant to see how this law recognizes the Black communities right to a system of education whose goals and curricula harmonize with their own culture, history and religion. It also requires the state to sanction discrimination and racism against members of the community and implement the principles of social equality. Additionally, it requires the state to advocate for the inclusion of a department of Afro-Colombian studies into the national education system, with the goal of exposing students to the unique practices of the Black communities and their contributions to Colombian culture (...). See Articles 6 and 7 of Law 70 (1993). By 1996, six of the communities already had their titles, two were in the process of receiving them, and between forty and fifty were in the process of turning in their requests (See CINEP 2001). Moreover, according to Incoras data, during the period between 1998 and 2002 (inclusive), the Black communities of the Colombian Pacific received title to 2,968,000 hectares of land, which have benefited 785 communities, totaling 31,566 families (See www.Incora.gov.co). See Decree 1745 (1995).
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possible, by majority. This means that even though the communities have a recognized right to selfdetermination through their internal regulations, their normative system must harmonize with the general legal system; that is, with the democratic social state of law. 30 In this sense, the legal norms arising from the 1991 Constitution propose the recognition and protection of these communities, as well as respect for their cultural life in all its worth, dignity and integrity and, therefore, their right to autonomous self-determination. This also includes the protection and promotion of their productive systems, in accordance with their ancestral relationship to the environment and their lands. Hence, it is clear that we cannot consider Colombia to be a homogeneous nation. Far from being uniform, the Colombian political landscape is defined by differences and the multiplicity of cultures. Thus, attempting to impose a national political agenda that disregards such diversity sows the seeds for forms of violence whose intent is to make the different forms of social movements invisible. The Peace Communities are a legitimate social and political project, and the norms that regulate their internal life are based on the constitution and on law. The movement is based on a pluralist conception of the nation and it thereby incarnates an alternative towards the effective construction of a state that recognizes cultural diversity.
TOWARD AN UNDERSTANDING OF FORCED DISPLACEMENT AND THE STRUGGLES OF THE PEACE COMMUNITIES
At this point I would like to reflect on the phenomenon of displacement to unravel its socio-political meaning; that is, the way in which it reveals the crisis of the state as a political community which exists so that citizens may have rights. It is only when an effective community exists to afford social and political recognition to social groups that citizens have the possibility of having a place in the world that allows them to express their opinions, defend their property, fully develop their cultural identity and make their own life choices. One could therefore say that displaced persons do not possess full citizenship due to the deficiencies and deviations in the construction of the state. Displaced persons have been put in a position in which it is not effective to belong to a political community and in which their citizenship is merely formal; they are not part of a community in which their opinions can be expressed and heard and their actions can be meaningful. With this in mind, I would like to show how the concrete case of the Peace Communities proposes a form of community struggle for social and political recognition that seeks the construction of a state which recognizes the communities potential to defend their property, their culture and their traditions; and that by defending their rights as citizens, the Peace Communities are a valid path toward the construction of a pluralist state. This reflective process is guided by the thought of Hannah Arendt who, in several of her works, offers categories, concepts, and methodological suggestions that shed light on this path toward understanding.31 First, I will sketch out a basic idea of the concept of understanding, such that it will be possible to identify the importance of this category in the essay. Then, I will return to the case study to attempt to understand its meaning and the condition of the displaced as citizens
30
31
This becomes clear in the discussion of how collective ownership of land should be administered and utilized based on the principles of its social and ecological use, in accordance with the Constitutional norm. See Decree 1745 (1995); Law 70 (1993); Political Constitution (1991), Art. 58. The use of Hannah Arendts thought, in the reflection on the phenomenon of forced displacement, has also been developed in the research directed by Mara Teresa Uribe de Hincapi, who also makes reference to Arendt. See Uribe (2001) Vol. 0. In some specific aspects I differ from Uribe in my interpretation of Arendt for the purposes of this study.
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who have lost the right to have rights, so as to allow us to discern the full meaning of the Peace Communities proposal.
Understanding Forced Displacement
Imagination (...) is merely another name for (...) the clearest of visions, the breadth of spirit/ and Reason in its most exalted form. Hannah Arendt
As pointed out at the beginning, this article is an attempt to be philosophical. Thus, understanding32 is a category with particular relevance in the development of this work, as it deals with the perspective from which it is possible to approach a concrete problem in order to discover its meaning.33 Hence, at this point I will be explicit about the theoretical position I have used to approach the problem. When Hannah Arendt attempts to understand the emergence of totalitarian movements in Europe in the first half of the 20th century, she discovers that the accepted political and moral categories and concepts have been pulverized by this phenomenon, meaning that she cannot in some naive way refer to the old wisdom of the past as a way of understanding the problem. Faced with the impossibility of making a univocal connection between the traditional categories of thought and contemporary political phenomena, such as the situation of minorities and stateless people (aptridas), the philosopher demonstrates that her efforts at understanding spring from human action as the originating principle. Action is the start of something new; the excellent manifestation of human freedom (Arendt 1998: 43). Freedom, as manifested in actions, creates the political world, creates [social] relations and thereby defines their meaning: through his actions, man shapes the meaning that defines his world. On this point, Arendt remembers what Saint Augustine said on the origin of history: man was created so that there might be a beginning; before which nothing existed.34 Although it is extremely difficult to understand the phenomena of the contemporary world using traditional concepts and categoriesas they are not equipped to address these new phenomena, understanding is revealed as the other face of action. It is a cognitive activity that comes into being as the counterpart of action and is capable of confronting and assuming that which has painfully occurred in the social and political life, with the goal of achieving some form of reconciliation with it (Arendt 1998: 30-44). Thus, this exercise alone immediately implies a process of selfunderstanding. With respect to forced displacement, the question of its meaning is, at the same time, the question of the meaning of political life in Colombia, and of the daily world in which such a terrible situation is possible. However, understanding the meaning of political actions is not limited to the search for causal explanations, in the model of the empirical sciences; nor does it consist in explaining facts by using logical theoretical models whose validity is independent of the political world (Arendt 1998: 40). Hence, this theoretical effort at understanding is not reducible to a discrimination of which facts offer us correct information, nor does it propose to opt for a scientific law that defines a univocal or definitive vision of the problem of displacement.
32
33
34
A broad discussion has developed within contemporary philosophy around the problem of understanding (See Heidegger, Martin 1993; Gadamer, Hans- Georg 1975). Despite the importance that I place on this category, I will not present an exhaustive overview of that discussion here, nor examine its conditions in-depth, since the limits and objectives of this study do not allow for such an examination. Nonetheless, I have opted to describe Hannah Arendts interpretation of the phenomenon, as her work is especially enlightening f or this study. Hegel also points out that the task of the philosopher is to penetrate into the concrete and historical Law and Ethos of his or her community in order to disentangle the deep, rational meaning of Law as a manifestation of human freedom. See HEGEL (1997) 3, Observation. As quoted by Arendt. See Arendt (1998).
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For Arendt, understanding is a complex process that starts with a preliminary understanding which is uncritical, common-sensical, and serves as an Arachnids thread to guide the philosopher in her or his work, define the path of his or her discoveries, and attribute meaning to them. Preliminary understanding comes before deeper knowledge and cannot be demonstrated, but only be unwrapped and made explicit. After this initial intuition, the scholars activity consists in distilling the immediate considerations and revealing the meaning already present in them; that is why Arendt affirms that understanding is a strange circular task which seeks to articulate and confirm primitive understanding (Arendt 1998: 44). Along these lines, our work parts ways with the common sense assumption that a subject possesses rights based on her or his existence in a common, concrete world in which the different members have their own space. For the ordinary man, subjects are not intellectual entities or natural resources, but rather individuals with a face, a history, a right to property and to develop their ways of life and seek their well-being in a country shared by all. In this work, I have reconstructed different empirical facts and assumed that only in a political community are subjects free; that it is only in such an environment that men will act in recognition of laws and state authoritiesgranted that such authorities in turn protect the rights of their members. However, this work shows that different national agendas are in conflict in Colombia, and that there is a dispute between different groups over the imposition of their law and the social recognition of their political vision. It also reveals how the struggle over norms impedes the effective protection of the rights of citizens and generates displacement. Thus, the meaning of this phenomenon [of displacement] is linked to the crisis of citizenship and of the state. On the other hand, Hannah Arendt shows us that understanding is not passive, but rather a task that is always creating itself alongside the actions that shape life. It is a cognitive activity that proposes and re-elaborates its problems in the light of new actions and which, therefore, only stops with death. Understanding is an imaginative exercise whose skill lies in always reconfiguring facts in a new way and pursuing different clues, trying to capture one small glimmer of the truth, of the dense, hidden human meaning (Arendt 1998: 45). As a result, this work starts with empirical facts which appear as pieces of a puzzle which we would like to decipher; not in order to have a definitive answer, or to instruct the victims, but rather to have an image that does justice to the condition of the displaced and the community that expels them from their homes, segregates them and discriminates against them. Hence, understanding displacement does not offer definitive solutions. Just as in everyday life finding meaning is not a precondition for solving difficulties, nor are solutions a necessary precondition for understanding. [Understanding] is rather an activity that amounts to the selfrecognition of the task of citizens and therefore extends throughout the life of the community; understanding is a task that unfolds throughout the history of a people. Nonetheless, this does not mean that the reflective endeavor is unimportant, as it constantly reminds us of the reasons for the struggle against the causes of displacement. One cannot demand that an understanding of this phenomenon yield answers or solutions, yet the task emerges as the other side of the struggle against this terrible problem. One cannot demand solutions from the philosopher, nor ask him or her to walk ahead on the path in order to serve as a guide from the finish line. As a result, the usefulness of understanding lies in the fact that it allows one to deeply penetrate the problem and bring to light the matter of who we are and what we are struggling for.
In this sense, the activity of understanding is necessary. Despite the fact that it can never directly inspire the struggle or provide it the objectives it lacks, it can only give meaning and provide new resources to the human heart and spirit, [resources which] perhaps only manifest themselves once the battle is won (Arendt 1998: 32).
35
In our country, the illegal takeo vers of public or NGO offices by g roups of displaced people have become actions to denounce the situation or to demand compliance with the law.
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With these theoretical elements and suggestions, I will attempt to understand the meaning of forced displacement and the struggle of the Peace Communities as an attempt at the construction of the state.
Forced Displacement and the Paradox of Human Rights
It is appropriate to ask what elements allow us to discover the social and political actions within the experience of the Peace Communities that are directed at the construction of the state. To this end, it is vital to break with the opinion that forced displacement is a multiple violation of human rights. Even though this common idea perceives the problem in a general sense, it is by nature vague and does not reveal the concrete content of such rights. When Hannah Arendt reflects on the situation of post-World War II Europe in Chapter 9 of The Origins of Totalitarianism (Arendt 1987), she examines the condition of minorities and stateless people to show how they reveal the decadence of the Nation-State, the crisis of which stems from the fate of the human rights regime. For the author, the Declaration of the Rights of Man constitutes one of the most important moments in history, as it meant that the source of law was no longer based on the commandments of God or on historically defined customs, but rather to be found in Man himself. From this perspective, such rights appear as formal, abstract principles based on the assumed existence of human beings as such, rather than being dependent on men belonging to a certain political community (Arendt 1987: 368). With regard to origin, these rights are not deducible to any other principle; while the legal order upholds these rights, it is assumed that no specific laws are necessary to protect them. Confusion over the nature of rights nonetheless surfaced over the assumption that, if the Rights of Man served as the basis of law, then they must also be part of the rights of people organized into a state and, consequently, it was assumed that only a fully emancipated and sovereign people could effectively guarantee such rights. In political practice, this produced the identification between the Rights of Man and the Rights of the Citizen, such that the protection of the former was left in the hands of the state in relation to its own citizens. The arbitrary link between these two types of rights only became evident after the First World War with the appearance of groups of pariahs who fled their country of origin because their ethnic characteristics made them targets for extermination. Such people therefore were no longer associated with any nationality, meaning that they now had nothing more than their basic human condition and, as a result, no government would commit to guaranteeing their rights.
The Rights of Man had, after all, been defined as inalienable because it was assumed that they were independent of all governments. Yet it turned out that, when human beings were left without their own governments and had to resort to their minimum rights, there was no authority left to protect them and no institution with any desire to guarantee them (Arendt 1987: 370; Agamben 2000: 81).
The proclamation of Human Rights as the basis for the nation-state in the first modern constitutions is essentially linked to the specific individuals association with a concrete political community: a certain nationality. That is precisely why a strategic understanding of the problem of forced displacement implies the knowledge thateven if at first sight this phenomenon appears as a profound and multiple violations of human rightsit should be approached from a civic perspective, as rights are generally only exercised and guaranteed in a concrete political community. In this perspective, the simple demand for human rights outside of a political community is an empty statement that lacks mechanisms for enforcement. Accordingly, only in an emancipated state that can exercise its sovereignty based on political recognition of different social actors, is it possible to ensure citizenand therefore humanrights.
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To the extent that we can consider internal forced displacement as a perversion of the category of citizenship, we can understand that the dilemmas and contradictions implied in this phenomenon are not only humanitarian in nature, but also fundamentally political. What is at stake with forced displacement is the very political condition of citizens and therefore the efforts at resisting such a terrible social event can be understood as a struggle for political recognition and the social inclusion of the displaced communities. In the concrete case of the Peace Communities, their justifications are aimed at the construction of an organized community structure based on the sovereign will of their members, in which the structure also serves as a medium for the protection of human rights. The arguments employed to this end are an expression of the struggle for socio-political recognition of their culture and traditions.
The Condition of the Displaced Person
As noted above, internal displacement is generated in an experience of profound terror. This is not limited to the fear of losing ones life, but is also usually fed by methods of persuasion such as torture and public execution in front of family members and friends, threats and selective assassinationswhich in some cases take on their own symbolic forms. Uncertainty and fear propel the flight from ones land, thus the future of the individual and family life is put at risk. Like a patriots (aptridas), the displaced have lost their homes, that is, the social framework into which they were born and built their lives. When they abandon their property, customs, habitual forms of relationships and the social ties that had allowed them to define themselves, the displaced lose their place in the world. In contrast to those who die in conflict, the displaced are living victims who in their flight bring with them the pain of having their place in the world snatched away from them. They carry into their displacement all of the painful weight of what is lost, that is, of the violent deaths of their family or friends, of the loss of their home and their land. It is precisely this condition that reveals that their citizenship is not effective, and that the general laws that organized their everyday world no longer apply. The condition of the displaced, as is true of the condition of people in other persecuted categories, reveals their nakedness, their purely human naturenuda vida. Hence, the internally displaced person, according to Agamben, shows man without the mask of citizenship that constantly conceals him (Arendt 1987: 370; Agamben 2000: 84). Nonetheless, in contrast to a patriots , this type of persecuted person has state citizenship. It is precisely because of that that the displaced person is a manifestation of the political crisis that makes his or her position possible: her citizenship does not assure the real recognition of her rights, meaning that it is a formal citizenship that is not based on concrete and effective recognition. Through their tragedy, the displaced show the precariousness of the national political construction. In spite of their supposed condition as full legal citizens, they have not only been expelled from their homes without recourse to the protection of the state, but they also have no opportunity after the fact to establish a new home in their own country. As a result, they are de facto a patriots . To paraphrase Arendt, the displaced become the dregs of their own society. As shown above, displacement is generated through norms of war that appear when the military hegemony of the dominant group in the region is at stake. In this way, the condition of displacement is generated not by acting outside of the law, but rather by finding oneself in the middle of a clash of legalities that demand submission and offer no rights (Uribe 2001: 67). Displacement is shaped by the confrontation between different politico-military agendas that express their dispute through norms. We can, therefore, trace the norms that express strategies of war, the aim of which is not the defense of the life and autonomy of the communities or respect for their rights, but rather terror.
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Furthermore, enjoyment of a home is closely linked to the protection that the state offers its citizenry. In the case of a patriots , state protection has been denied through a legal norm that strips them of their nationality. Hence, they have lost their citizenship de jure. These persecuted persons have been expelled from the purview of the law, such that they cease to belong to a political community that would allow them to exercise and demand their rights. Such expulsion is not at this point determined by their ideas or political opinions, which might allow them to seek political asylum in another country. A patriots are persecuted not for their thoughts or actions, but rather for having been born into a certain race, class, religion or condition. This defines one of the central characteristics of this category of persecuted peoples: their innocence.
(...) they were and appeared to be nothing more than human beings whose very innocence from any point of view and especially from that of the government persecutorwas their greatest disgrace. Innocence, in the sense of a complete lack of responsibility, was the mark of their condition of being outside of the law, as well as the sanction of their loss of political status (Arendt 1987: 373).
This innocence, which defines their status as victims, is a common characteristic among a patriots and internally displaced Colombians. The innocence of the displaced makes the enormous pain of their loss even more profound and overwhelming, given that as innocent victims they cannot identify a precise cause that allows them to explain their situation: they are persecuted for merely having lived in a certain part of their country. The displaced people of Riosucio have been persecuted for living on their lands and for developing a life that is consistent with their cultural customs and traditions; that is, for being innocent citizens. The conflict between the different armed groups for control of their land became so intenseand the precariousness of the state institutions that could protect them became so evidentthat the only way they found to protect their lives was to leave their lands and organize an internment camp. Nonetheless, what was most notable about this situation was the ability that the displaced developed to resist the merely disciplinary practices of the camp and to transform them into forms of autonomous organization and convert the internment camp into peace communities. The restoration of their condition as citizens was possible thanks to the genetic reconstruction of their cultural practices. Despite deficient sanitary conditions and constant threats and harassment by the military authorities and armed groups, the Pavarand settlement became an environment in which the displaced could reconstruct a humane world; a public space in which it was possible to develop actions directed at the recovery of their lost homes.
Membership in a Political Community
The misfortune of those who have been expelled from their homes and left without the recognition of the political community to which they belong is thatas is the case with the a patriots they cannot enjoy any of their rights. We are not talking here about a certain instance in which a certain right was momentarily suspended, as is the case with soldiers who lose their right to life during a war or delinquents who lose their freedom as a result of a crime. Faced with a loss of the freedoms of movement and of opinionwhich are indisputable expressions of human liberty, the displaced are not recognized as members of the political community to which they nominally belong. Through this, more than the loss of any one specific right, they discover that they are deprived of the very right to have rights, and that they have ceased to belong to a common political space in which their opinions are meaningful and their actions affect others (Arendt 1987: 375). The displaced person has been deprived of the freedom of movement (she must leave even when she doesnt want to and cannot go where she chooses, but only where she is allowed to go) and also of the freedom of opinion, as opinions cannot be publicly expressed and debated since the public space has dissolved under the reign of a certain dominant, forcibly imposed truth. Before
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one can discuss an opinion, it is first necessary to assume that it will be listened to, considered and reasoned, but the displaced have lost their voice and their actions have lost their meaning, given that their condition implies the loss of their union with the political whole. The displaced have lost some of the characteristics that have defined the human condition since the days of Aristotle: command of speech, the ability to turn their thoughts into actions and, fundamentally, their membership to a political community. According to Arendt, the best way to discover whether a person has been radically deprived of his Human Rightsof his right to have rightsis to ask ourselves whether the possibility of being sentenced for having committed a crime could have a beneficial effect for him inasmuch as it would finally recognize him as a legal subject and thus incorporate him into the purview of the law. If the answer is yesthat is, if the crime assures the inclusion of a person into the everyday legal orderthen we are facing a true pariah (Arendt 1987: 364-365). Despite the fact that they possess a nominal nationality, displaced Colombians lack any effective recognition The burden of proof of the condition of displacementthat is, to receive legal recognition as suchrests on the victim, who as we have already mentioned is completely vulnerable and has lost her voice and capacity for effective action. Without legal recognition of his or her condition, the displaced person cannot hope for any guarantee of his fundamental rights or benefit from the public policies designed to solve the problem of internal displacement and to protect the victims. Paradoxically, in the absence of legal recognition of his status as a displaced person, he cannot obtain effective legal recognition of his basic rights as a citizenwhich are precisely the rights he lost in the process of displacementmeaning that he is left as a pariah. In contrast to Arendts idea of a debatable gain in terms of the recognition of rights and procedural guarantees when the pariah commits a crime,35 the practices of the criminalization of the displaced Colombians have been twisted and have taken on the form of a dirty war and of social cleansing. An individual who simply lives, and whose national rights have been de facto denied, is only a man faced with his utter nakedness as he discovers the loss of the political condition which allowed him to exist. From this point of view, the belief in Human Rights based on the supposed existence of a formal and abstract human reality is proven empty. The displaced person shows us that it is only in the construction of a political community that establishes effective recognition of her citizenship that respect for rights becomes possible. That is the most important point of the efforts of the Peace Communities, as they are not just social spaces in which citizens reconstruct their lives from a personal and social perspective. Rather, they demonstrate how community structures make the struggle for political recognition possible. The social organization of the displaced in the Paravand settlement defined the shape of their struggle in defense of their lives and their land from a political perspective that demanded the application of legal norms to grant them rights not just as displaced peoples, but also as full citizens.
Ownership as an Expression of the Legal Person
The struggle to defend ownership of their lands, based on Law 70 of 1993, produced the Black communities demands for their cultural identity. In order to understand this phenomenon, I draw in a general sense from the thinking of Hegel, for whom property is an immediate affirmation of the will of a legal person over a thing.
The predicate of mine, which is in and of itself an abundantly practical predicate which the THING receives by being judged to be a possession, first through external appropriation, means here that I instill in it my personal will. Through this determination, the possession becomes property, the medium of which is possession but the purpose of which is the existence of the personality (Hegel 1997: 489).
Property is the immediate material expression in which the legal person is reflected. It is the medium through which [the legal person] appears before the society of property owners seeking
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recognitionthat is, for Hegel, civil society. Yet, as soon as property becomes the expression of the person, it also becomes an end in and of itself. Property is not something external to the legal person. Rather, it is through [ownership of] property that the legal person materializes and takes shape. Through his work, man transforms the natural reality by giving it a face and a human form. This process of formation, in turn, makes the person define his own identity and his own face. Through their work, men imprint their particular image onto natural objects, building a human and cultural world that allows them to find themselves, define themselves as a community, and at the same time build a world in which to pursue their own interests and agendas. In this sense, the struggle for land ownership and the defense of traditional methods of production constitute an effort by the communities to conserve the habitual forms of work and relationship that have defined and shaped their cultural world. Because property expresses or reflects legal personhood, as the Peace Communities receive ownership over their lands, they also receive their recognition as legal persons and members of society equipped with rights and duties. As a result, property is not something adjectival, but rather fundamental to the subject himself, since it is through [property] that he becomes a man and allows others to recognize him as such. I agree with the German author that the law is the realization of liberty in the concrete world of customs, traditions and community and that, therefore, legal defense of the property of the Black communities implies respect for the very freedom of the concrete men who produce their cultural life through their property. In light of these reflections, the activity of the Peace Communities is an affirmation of a social and political position in defense of liberty which is penetrated by the affirmation of their rights as free citizens. Their demands seek not only the fulfillment of their own private interests, but rather propose the affirmation of political principles that affect the freedom of society as a whole. By reclaiming their citizenship, they seek the construction of the state, that is, a political community that recognizes the freedom of different communities and social groups to build their lives according to their own perspective.
The Contributions of the Peace Communities to the Construction of the State
Considering that only membership and real recognition of subjects into a domestic political community serve as the basis for the protection and defense of their rights, we can see the clear and profound political and social meaning embodied by the Peace Communities. If, according to military logic, populating the region with communities is the preferred medium for achieving a link between these communities and the armed struggle for territorial dominance, then the Peace Communitiesthrough their declaration of neutralityrefuse to participate in this strategy. They instead choose to obey only a social and political tactic for the affirmation of their own communal interests. In the face of the barbarity of war, the strategies of these unarmed groups involve the public reclamation of their rights and the denunciation of the attacks to which they are subject. The normative organization of the Peace Communities is legitimate and their decisions are sovereign as long as its prescriptive nature, as a system of law, is fully and explicitly recognized by the constitution and by law. The laws of the countryside, guided by the concept of self-defense and imposed by the guerrilla and paramilitary groups, use terror to displace subjects, but the rules which gave birth to the Peace Communities were elaborated and appropriated by their members and therefore come from their interests, traditions and cultural customs; that is, from their common will. The elaboration of the rules and the operative organization which allows for their application depends on the members, who act with full knowledge of the norms and the sanctions for breaking them.
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Given the instrumental nature of the norms designed by the para-state and counter-state armed groups who seek to establish a homogeneous national identity, the legal and constitutional norms offer the Peace Communities the legal basis for multiculturalism. In the context of a state founded on profound diversity, the rules of the Communities are valid legal resources for the development of their socio-cultural life. If the criteria for justice are erratic and contingent in the midst of the struggle over the legalities discussed above, the rules that govern the internal discipline of the Communities follow legal, constitutional principles that make it possible to demand the defense of rights. Thus, while the armed groups strategy of territorial domination is based on terror, the Peace Communities strategy is the public exposure of their condition as victims. Given their existential situation of anguish, pain, desolation and death, their line of reasoning seeks a method for the protection of the civilian population through the application of International Humanitarian Law [IHL]. Nonetheless, as mentioned throughout this text, the recourse to IHL is not a formal one, but is rather part of the struggle for recognition and for defense of their political rights through which they defend their property, culture and customs.
REFERENCES
Acnur (2001). Las comunidades de paz: una reflexin sobre la equidad de gnero. Bogota: ACNUR. Agamben, Giorgio (2000). Poltica del exilio, Identidades comunitarias y democracia. Madrid: Trotta. Agudelo, Carlos Efrn (2001). Nuevos actores sociales y relegitimacin del Estado. Estado y construccin del movimiento social de comunidades negras en Colombia, Anlisis Poltico, 43. Arendt, Hannah (1987). Los orgenes del totalitarismo. Madrid: Alianza. _____________(1998). De la Historia a la Accin. Barcelona: Paids. Cinep (2000). Comunidades de Paz de Urab. Una historia que merece contarse. Bogota: Cinep. _____ (1995). Informe de la Comisin Verificadora de los actores violentos en Urab. Bogota: Cinep. Codhes (2002). Aspectos crticos de la poltica pblica de atencin a la poblacin desplazada, 1998-2002 . Bogota: www.codhes.org.co. Comunidad de Paz de San Francisco de Ass (1997). Reglamento interno. Comunidades de Autodeterminacin, Vida, Dignidad del Cacarica (2002). Somos tierra de esta tierra. Cacarica: Cavida. Corte Constitucional de Colombia. Sentencias T327-01 and T227-97. De Sousa Santos, Boaventura and Garca Villegas, Mauricio (2001). El Caleidoscopio de las justicias en Colombia. Bogota: Colciencias. Encuentro Nacional por la Construccin de la Paz, Neutralidad Activa (1997). Declaracin final. Medelln. Gadamer, Hans-Georg (1975). Verdad y Mtodo. Salamanca: Sgueme. Gruner, Sheila (2002). Desplazamiento forzoso, polticas externas y la Comunidad Internacional: hacia un reconocimiento de la responsabilidad del Norte. In Segundo seminario internacional: desplazamiento: implicaciones y retos para la paz y la sostenibilidad democrtica. Bogota: Codhes. Hegel, G.W.F. (1997). Enciclopedia de las Ciencias Filosficas. Madrid: Alianza. ____________ (1997). Fundamentos de la Filosofa del Derecho. Madrid: Libertarias/Prodhufi. Heidegger, Martn (1993). El Ser y el Tiempo. Mexico: Fondo de Cultura Econmica. Hernndez, Esperanza et al. (1999). Con la esperanza intacta. Experiencias comunitarias de resistencia civil no violenta. Bogota: Arte y Folito. Hernndez, Esperanza (2000). Comunidades de Paz: Dilemas, lmites, posibilidades. Bogota: Pontificia Universidad Javeriana. Uribe, Mara Teresa et al. (2001). Desplazamiento forzado en Antioquia. Bogota: Secretariado Nacional de Movilidad Social. Uribe, Mara Teresa (2000). La territorialidad y el conflicto armado en Antioquia. Medelln: Universidad de Antioquia. Vergel, Carolina (2002). La tutela jurdica a los desplazados por la violencia en Colombia. Presente y futuro de esta problemtica. Bogota: Universidad Externado de Colombia.

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