Introduction
For the past years, Colombia has become an infamous State faced with different adversities triggered by terrorism, defined as an act of violence, which, across universal history, has materialized in acts, such as seizures and wars, among others.
To develop the first axis, we will define what terrorism is. According to the Resolution 1566/04 of the Security Council of the United Nations, it is described as
Any act (...) meant to cause death or severe bodily injuries to a civilian or non-combatant, when the purpose of the said act, because of its nature or context, is that of intimidating a population or forcing a government or international organization of realizing an act to restrain from doing so. (Security Council, 2004, p.3).
Terrorism has been established nationally and internationally, according to Rodríguez (2012) as "any dishonorable or coactive, violent act, directed, without any moral, towards society" (pp. 86 - 88).
Based on these definitions, the inconsistent perspectives in defining the events presented nationally between 1990 to 2000 and the notion of terrorism, from a Colombian context, can be understood as a method of force, threat, and fear, among others, to achieve a political objective, creating a constant state of anxiety in the population, which places the state in a no-action field depending on the circumstances of the event.
Given that terrorism is understood as an illegal act, there must be mechanisms to react against it to achieve quick and efficient solutions, defined as the public policies in a matter of security, which are understood as:
An essential tool in the academic and theoretical execution of public management. Nowadays, this type of policies is the platform of the plans, programs, and projects oriented to solve part of the existent social conflicts. (Arroyave, 2011, p. 95).
Therefore, public policies1, known as government decrees, executed by civilians and created to their needs, maintain their element of public interest in effectively attending public state issues. Indeed, public policies2, in matters of security, are the adequate mechanisms to approach terrorism based topics that affect social, economic, political, and cultural conditions in order to consolidate or determine, the facts, characteristics, factors, and consequences of the generated conflict and using them to achieve a prompt solution.
This study seeks to determine the efficiency of public policies in matters of security related to transitional justice regarding the conflict with the FARC in the Colombian state.
An overview of terrorism in Colombia
The five-decade Colombian conflict between the FARC-EP (Fuerzas Armadas Revolucionarias de Colombia - Ejército del Pueblo - Revolutionary Armed Forces of Colombia - People's Army. From now on, FARC), the Colombian public force3, and the citizenship has caused terrorist actions that have established fear within the population. According to Ambos, Malarino & Steiner (2015), terrorism is understood as:
Every act of violence against civilians seeking political or ideological objectives, planned to provoke a state of fear in the population that is unjustifiable in all circumstances, whichever were the considerations that led to committing it. (p. 34).
Meaning that terrorism is a method that implies force and violence to spread fear to certain groups of people or the general population, this, alongside violent acts that intend to create uncertainty and insecurity with the intention of defeating the established government.
Concerning terrorism, it is understood that its fundamental objective over a society, according to Lira (1991), is to "reinforce menace and fear" (pp. 125 - 126) to have control over it.
Violence against civil population has been distinguished by the daily succession of small scale events such as 1) selective homicides; 2) forced disappearances; 3) massacres with less than six victims; 4) kidnappings; 5) sexual coercion; and 6) anti-personnel mines. (Álvarez, 2015, p. 52).
In Colombia, during the years 1990 to 2000, the objectives of terrorist incidents were directed to dominate, restrain, and take control of the national government to implement the FARC's ideologies coercively, achieving a structure of terror, according to Gómez, "using physical violence, illegitimate coercion, torture, threats, attacks, forced disappearances, displacements, and homicides or extrajudicial execution against the Colombian civil population" (2011. p.3). A clear example of the effects of this objective were the "false positives," which represented "A systematical and generalized practice realized by the Colombian State against civilians, which was carried out by the Armed Forces in the national territory to raise the statistical positive results against insurgency and criminality (Bonilla, 2017, p. 11).
Following this statement, the Colombian government was involved in a crime that was committed with the sole purpose of showing positive results, reflecting the diminishment of the armed groups that existed at the time by using civilian bodies and making them look like participants in subversive groups.
In this context, terrorism is an idea or method associated with the propagation of political ideology through violent acts. In Colombia, a part of these violent spotlights was attributed to the group called "FARC-EP," positioning them as an objective. This position was possible, in the words of Guaquez (2013), by "attaining power by being involved in local activities directed to achieve that objective and expanding in various social scenarios of the country" (pp. 7 - 10).
In Colombia, terrorism follows a goal. The goal pursued with terrorist acts is to produce political changes4 such as, the implementation of new ideologies to bring a change to society. The FARC's fundamental problem is the method used to achieve its goals, how the acts are executed, producing victims outside the conflict; in other words, civilians. Table 1 shows some of the most prominent terrorist events between 1990 to 2000 executed by this guerrilla group.
Source: Prepared by the authors, based on data in the data base of the Center of Historic Memory (2012).
These terrorist events were directed to cause panic in the population and result-ed in both civilian and military casualties. However, these were not the only terrorist acts perpetrated by these groups. There were also massacres, damage to public property, kidnappings, selective, and homicides, among others. According to Rivas, Sánchez, and Cepeda (2009),
Evidence of this complex setting are the more than 50.000 disappearances, 10% of displaced population, and more than 150.000 homicides, as well as the vast destruction of communities (18 indigenous people near extermination; popular sectors such as farmers, social movements, trade unionists, and human right defendants victims of continuous crimes), an overview of the degradation of human rights in the frame of terrorism politics in the Colombian State during the last decades. (p. 4).
Besides these actions by the FARC, terrorism was also evidenced in most of the acts performed by FARC, which were linked to indiscriminate violence.
"Terrorism is an anxiety-producing method based on repeated violent actions by an individual or clandestine group or state agents, for idiosyncratic, criminal or political motives." (Schmid & Jongman, 1988, p. 148).
The use of indiscriminate violence to inspire fear and intimidate the population is a complex scenario. These are not actions that should be overlooked. The execution of violent acts within an internal conflict, like the one in Colombia, manifests extreme transgressions of human rights not only towards the agents involved but also towards civilians caught between the conflict or those used by both parts to obtain results. As a result, the government, acting in pro of Colombian society, generated national security public policies to face the problems experienced at the time.
Public policies based on national security
When approaching terrorism, States must work to generate plans and strategies based on public policies for protection5 and against terrorism. Therefore, public policy is:
The reflection of the ideals and yearnings of society. They express the goals of general wellbeing and show where development wants to be guided and how to do so, evidencing what is pursued with public intervention and how responsibilities and resources between social actors should be distributed (Torres & Santander, 2013, p. 15).
Consequently, public policies are the structural base of a society's security when the government acts as the executor of the collective public action, interacting with every actor involved in society and politics to better benefit the State. These policies are understood as "The sum of initiatives, decisions, and actions of the politic regime regarding socially problematic situations" (Vargas, 1999, p. 85).
Public policies, which are considered as an effective instrument to execute public management in pro of society and government, are
Understood as instruments adopted by a State to guarantee civil rights, in the context of a Rule of Law, in which, based on a determined constitutional model, it is commit-ted to, at a minimum, guarantee its citizens the rights to respect, protection, and the fulfillment of fundamental rights. (Romero, 2015, p. 39).
The Colombian State was able to identify a need, even if it were based on "A wide range of social, political, economic, environmental or cultural causes" (Ministerio de Defensa, 2015, p. 5), to solve setbacks and discrepancies that emerged from these events. Based on this assumption, the national government faced the issue of terrorism by developing various security policies, for instance,
Políticas de Negociación La mano Abierta y el Pulso Firme (César Gaviria, 1991 - 1994); primera estrategia Nacional contra la violencia - Plan Quinquenal de fortalecimiento a la Fuerza Pública - Estrategia seguridad para la Gente: El Salto Social (Ernesto Samper, 1994 - 1998); Plan para la convivencia y la seguridad, y cambio de para construir la paz (Andrés Pastrana, 1999 - 2002); Estrategia nacional de convivencia y seguridad ciudadana. (Róman, 2011, p. 254).
As a result of the series of unfortunate events, which were categorically rejected by society, and violated most of the human rights, the national government promoted antiterrorist campaigns through public policies, using society as a key element in their construction. Determining that their creation was directed to the absolute eradication of these delinquent acts, and establishing them as the best method to avoid wrongful actions by the government concerning the generation, agreement, and implementation of public policies in the legal framework. Ultimately, understanding that policies are the fundamental and ideal instrument for the structuration of society in times of conflict -whatever its nature or underlying need- because they take into account all the relevant aspects of the emerged problem to reach an agreement and an effective solution.
Public policy application
Public policy and its intrinsic connection with social wellbeing have been directed solely towards a commitment to identify social needs through their creation and implementation. Therefore, they involve different approaches -whatever its nature- like who, when, how, with whom, and for whom. Always emphasizing social needs.
The implementation approaches are set as central axes in the cycle of politics because their execution is where both efficacy and effectiveness are interpreted. (Mejía, 2012, p. 150).
Based on the previous statement, public policy must be understood as a socio-political construction space in which the rationality of the events elicited nationally, and the population is studied. Consequently, actions are designed and implemented in policies to solve or stop the setbacks that emerge without losing the harmonious relationship with every aspect of social and political life. In this line,
Public policy, as an integrative process and subsystem, is not created in a void; it is a part of the environment with which it interrelates and cannot exist without. The environment will affect the policy, which seeks to influence it, on some occasions, attempting to maintain things in their current state. (Gavilanes, 2009, p. 166).
Consequently, public policy must be considered a tool to access the political system to mitigate the problems that are born within society and must be handled quickly to avoid the deterioration of Civil Rights.6
From this point of view, public policies can be understood as a process that begins when a government or public directive detects the existence of a problem that, because of its importance, deserves attention and ends with the evaluation of the results of the actions taken to elimínate, mitígate or modify that problem. (Carrillo, 1997, p. 2).
Thus, the efficacy of public policy will vary according to its field of application, and the place where it is implemented according the country's legal framework, which ratifies it as a decision made by a legitimate authority. This authority is responsible for linking every actor and legitimating the policy's validity, as well as evaluating the adopted public policy to verify its effectiveness by examining its effect in the last instance it was used.
Public policies, are foremost, a means of government decision-making and executing actions, but never the only one possible. These decisions and their implementation vary in each country, depending not only on each nation's political system of but also local culture and traditions, as well as the problem to be addressed, among other fac-tors. (Arrellano & Blanco, 2016, p. 29).
Therefore, public policies must be understood as one of the many legal, political, and social methods to contest every conflict that may emerge within a State. It must be noted that all of their intrinsic elements must seek to protect and guarantee the general wellbeing at all costs. Thus, they must be intimately colluded with the State's goals to generate an impact in favor of society.
An example of this is the public policies implemented during the period of 1990 to 2000 when the outbreak of violence caused "the rise of the homicide rates, (...) the narcoterrorism offensive, the advance of the militia phenomenon in the city, (...), and the urbanization of war by the guerrillas and self-defense groups" (Giraldo, 2012, p. 5), were enough to the government to act in favor of society, motivating peace agreements with FARC for a cease-fire.
The agreements with the FARC started formally in 1982, during the term of Belisario Betancur, and failed by 1987. A second informal attempt was made in 1991, during Cesar Gaviria's presidency, when conversations ended with the homicide of ex-Minister Argelino Duran Quintero, in 1992, by this group. A third formal attempt to end the conflict and attain a peace agreement was made in 1999, got during the presidential term of Andrés Pastrana, which ended in 2002. It was not until 2012 that the peace treaty with FARC was finally achieved under the presidency of Juan Manuel Santos.
However, it must be noted that the victim protection policies have been handled at an international level through international jurisdiction. From 1990 to 2000, some cases were brought before the Inter-American Court of Human Rights, in which both State agents and members of subversive groups were charged as the executors of Human Rights transgressions against civilians and functionaries, among others. Table 2A presents the cases that have been ruled by this Court against the Colombian State.
Legend: RL-Right to life, RPI-Right to personal integrity, RPL-Right to personal liberty, JG-Judicial guarantees, JP-Judicial protection, CR-Children´s right, RFMR-Right to freedom of movement and residence, LTE-Liberty of thought and expression, RPHD-Right to protection of honor and dignity, PSFLS-Prohibition of slavery, force labor and servitude, RPP-Right to private property, PR-Political rights, RFA-Right to freedom association, PF-Protection of the family, FD-Forced displacement, EBL-Equality before the law, Court IAHR-Inter-American Court of Human Rights, IACHR-Inter-American Commission on Human Rights, ACHR-American Convention on Human Rights.
Source: Prepared by the authors, based on data in the repository of the InterAmerican Court of Human Rights.
The violation of fundamental guarantees and human rights is reiterated in each case that has been brought to this court, for instance, the two cases shown in the table took place in the 90s, and in both, there was a transgression of the inherent rights of human-kind carried out by state agents or participants of the armed groups.
Colombia has a variety of cases concerning the transgression of these rights. Table 2B shows other cases brought before the Inter-American Court versus Colombia.
Legend: Legend: RL-Right to life, RPI-Right to personal integrity, RPL-Right to personal liberty, JG-Judicial guarantees, JP-Judicial protection, CR-Children´s right, RFMR-Right to freedom of movement and residence, LTE-Liberty of thought and expression, RPHD-Right to protection of honor and dignity, PSFLS-Prohibition of slavery, force labor and servitude, RPP-Right to private property, PR-Political rights, RFA-Right to freedom association, PF-Protection of the family, FD-Forced displacement, EBL-Equality before the law, Court IAHR-Inter-American Court of Human Rights, IACHR-Inter-American Commission on Human Rights, ACHR-American Convention on Human Rights.
Source: Prepared by the authors, based on data in the repository of the Inter-American Court of Human Rights.
After the events that took place in Colombia, international entities, such as the Inter-American Court, served to judge the cases that were unable to be solved nationally because of misinterpretations, or the exhaustion of all the legal mechanisms available nationally. To reinforce the constitutional guarantees of the victims of the conflict, the Constitutionality Control, and Conventionality Control doctrines were created. The former, according to Cerra (2001), "Is a compilation of jurisdictional resources created to verify that the legal acts carried out by institutions and following established attributions do not break constitutional principles" (pp. 163 - 166). These controls are the means to enforce constitutional norms through the revision process of every jurisdictional act to prevent any contradictions with the Constitution that would lead to its annulment.
The second figure, the Conventionality Control, according to Carrasco, Cubides and Sierra (2016) is
(...) is the method used to confirm that a norm, law or act performed by a State entity, adapts to the principles, norms, and obligations stated in the American Convention on Human Rights (ACHR). (pp. 55 - 57).
In other words, it is a tool to ensure the respect and guarantee of the rights stat-ed in the ACHR under the norms that suggest the complementarity between constitutional and conventionality control, guaranteeing the use of the international instruments derived from the Treaties7, the jus cogens of Inter-American jurisprudence8 in order to adhere them to the internal law system, using them as a mechanism for assertive and argument-based decision-making without disregarding any constitutional guarantee or fundamental right. According to Bazán (2011),
The jurisdictional argument is the most important criterion that answers to the exercise of constitutionality and conventionality control towards the full observance of the constitutionality block to engage the State with the International Right of Human Rights. (p. 82).
Clearly, every decision must have arguments based on the international principles and obligations stated in the ACHR to be interpreted, considering that
1.1. Obligations to respect and guarantee. The Member States of this Convention commit to respect the rights and liberties herein and guarantee their free and full exercise to each member of its jurisdiction, without any discrimination (...); and 2. Obligations to adopt internal law decisions9. (Convención Americana de Derechos Humanos, 1969).
Therefore, each Member state has an imperative obligation, which is "The obligation to respect the rights provided for in the Convention and guarantee the full compliance of every member of its jurisdiction" (Villamizar, 2017). Thus, the obligation to respect these rights constitutes the most basic and immediate responsibility of the States, as it compels the non-interference or jeopardizing of these rights.
Therefore, the Member States have responsibilities before international entities, such as the Inter-American Court of Human Rights. As a part of this entity, they must follow a constitutional ruling based on the Court's international jurisprudence to avoid another transgression of human rights or due diligence. Moreover, the previous establishes that national courts and tribunals must frame their decisions and actions according to the normative framework of the international instruments of human rights.
It is fundamental that there is a jurisprudential precedent and hermeneutic strands for the juridical operatives and justice administrators so that it turns into the constitutional policy or ordinary judges. (Suelt-Cock, 2016).
As a result, state judges must be aligned with the Inter-American System of Human Rights (SIDH) by imparting ordinary justice as constitutional judges, complying with the mandates of international instruments such as the ACHR10 to present appropriate and lawful rulings, based on the effects and parts of the conflict.
The commitment of first level judges to human rights must be expressed when they activate the exercise of diffused constitutionality control (...) so that it is not only the Inter-American Court must exert control but that local judges can and must also accomplish this task previously, clearly, before the conflict enters an international court. (Hitters, 2009).
Ultimately, international entities have an essential finality, which is to oversee that the States protect human rights, and avoid the transgression of these rights by developing new forms to prevent this type of actions in the future.
To achieve an effective process toward peace, according to the events mentioned previously, the national government, international entities, national security organisms, administration, and actors must work together to guarantee that every result favors society. At the same time, guarantee that justice is administered appropriately by generating public policies, not only in matters of civil security but also, in matters of mechanisms and institutions that administer justice fairly, referring particularly to the Colombian case known as FARC, this is transitional justice.
Transitional justice
According to Zambrano (2016, p.122)
The term transitional justice refers to the processes through which radical transformation in a socio-political order is made, whether because of a transition from a system of dictatorship to democracy or because an internal armed conflict is ending and peace is being pursued.
Thus, transitional justice can be understood as the mechanism used to hold the agents of the conflict accountable and obtain victim reparations. "From here we draw that the instruments of transitional justice focus not only on overcoming the consequences of conflicts but also on facilitating their closing" (Cubides & Sierra. 2017, pp. 642 - 643).
When it comes to Colombia, based on the armed conflict, the primary goal of transitional justice "is to leave the conflict behind and reconstruct the social fabric" (Uprimny, 2006, p. 1). Hence, at a State level, many social, economic, and political factors must be combined to re-harmonize the relationships within the country to achieve a state of peace.
However, in addressing this issue, we must remember that the focal point of transitional justice is the recognition and condign reparation to the victims.11 This effort at-tempts to find a balance between peace and justice through negotiations between both parts; obtaining the truth and individual reparations in exchange for sentencing benefits through alternative sentences.
Conclusion
From the Colombian scenario, the cooperation between national and international organisms for the efficient administration of justice through public policies in matters of security and human right protection, among others, is noteworthy. Mechanisms like Transitional Justice, which offer the opportunity to clarify the facts in which massive violations of human rights occurred and the reparation to the victims, can be applied to legal systems to achieve better rulings of similar future cases.
When discussing the concepts of terrorism, public policies, and Transitional Justice in Colombia, it must be noted that the core of these concepts is the importance of the victim. However, with the desire to end the conflict, other important aspects, such as transparency in the processes that ensure the victims' trust, as well as just reparation must not be overlooked.
Public policies, as they have been explained in this document, are public interest-guided actions taken by the national government in response to specific public issues. In this specific case, the 50-year conflict between the FARC and the Colombian government, public policies played an important in facing the situation. To the extent that on several occasions, the government's unsuccessful efforts to negotiate with this group to create a Peace State, were caused by external factors.12
The public security policies implemented were successful at ending a conflict that lasted five decades. Despite the wave of violence unchained by the FARC and the Colombian government, the sense of danger there was decreased. In the past, the national government's shortfalls in coordination and organization made the policies ineffective; which created a problem of public security that limited its capacities to act and even leaving it powerless in certain areas dominated by violence.
Taking into account Transitional Justice and what it implies, the government must ensure the transparency of the processes to guarantee the victims the justice they deserve from the outset, which is their fundamental right. However, although this is the responsibility of the State, it must be, at all times, supervised by the international entities that work towards the fulfillment of justice for the victims so that they obtain certainty and the needed reparation.
Undoubtedly, the conflict lived in Colombia produced a high number of aggressions and injustices, among others. The government must be aware that the focal point to achieve justness through transitional justice is the victims of the conflict. Creating a Peace State that existed under the shadow of war for more than fifty years is not easy; however, it is not impossible. The main goal should be the assistance to the victims during their path to recover the rights that, at some point, were taken from them.
Although Colombian public policies may have been structurally flawed concerning the problem with the FARC, evidenced by the multiple attempts to create peace treaties, the yearning to end the conflict yielded results in 2012 with the signing of the peace treaty. It is unquestionable that public policies are key when it comes to solving public issues, given their effectiveness and value when justice must be administered.