INTERSECTIONAL PEACE: Opportunities and Limitations of the Colombian Peace Agreement for Transforming Violent Normative Practices

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INTERSECTIONAL PEACE

Opportunities and Limitations of the Colombian Peace Agreement for Transforming

Violent Normative Practices

Ida Emilia Frost

Spring Semester 2020

Student Thesis in Law, 15 Credits

[MA in Law, Gender and Society, 60 hp]

Supervisor: Lena Wennberg

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1 Abstract

Intersectionality has become a popular analytical tool and framework, both among academic scholars and practitioners, for understanding the differential impact of diverse forms of violent practices. Feminist Socio-Legal scholars, for example, have made significant progress in unmasking, deconstructing and re-signifying law in the context of structural and institutionalized patriarchal, racist and other violently maintained power hierarchies. Such violent normative practices are part of a complex system co-dependent and mutually reinforcing structural and institutional practices that generates and perpetuates patterns of violent relationships. This has led to a call for more inclusive, participative and pro-active normative practices, especially during peace processes, which are critical moments for political and institutional transformations that specifically seek to change patterns of protracted violence.

The mainstreaming of transversal approaches, for example, is assumed to help close social cleavages and prevent violent conflicts. The most recent Colombian Peace Agreement (2016) has been internationally recognized as one of the most progressive in terms of participation and inclusion of transversal approaches and perspectives such as gender, ethnicity, territoriality and Human Rights. However, despite over three years of implementation and successful demobilization process, the conflict has escalated in the peripheral areas of the country, ethnic communities and their leaders are again over-represented among victims of the violent conflict.

There have also been several national and international alerts for the risk of regressions in rights already obtained by ethnic communities, such as the right to Free and Informed Prior Consultation and Special Land rights. This paper explores the opportunities and limitations of the peace agreement to transform intersectional violence as materialized in the legal body born out of the implementation process in Colombia.

Key words: Transformative Justice, Peacebuilding, Intersectionality, Violent Normative Practices

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4 States parties’ obligations under the Convention require them to address all violations of women’s rights as well as the underlying structural sex and gender-based discrimination that underpinned such violations. Besides providing redress to women for gender-based violations suffered during conflict, transitional justice mechanisms have the potential to secure a transformative change in women’s lives. Given their important role in laying the foundation for the new society, these mechanisms represent a unique opportunity for State parties to set the ground towards the achievement of substantive gender equality by addressing pre-existing and entrenched sex and gender-based discrimination which have impeded women’s enjoyment of their rights under the Convention.

(Convention on the Elimination of All Forms of Discrimination against Women CEDAW/C/GC/30 paragraph 77)

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1 The photo on the frontpage is from the Nasa Indigenous territory La Paila, Norte de Cuauca, Colombia during a workshop with the women of the comunity for developing their own mechanisms for doing monitoring and verification of the implementation of the peace agreement.

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2 Introduction

The Peace Agreement between the Colombian government and the largest guerrilla group FARC-EP signed in November 2016, has become internationally recognized for being the most gender sensitive peace agreement signed so far in the world. A special gender commission was created and made sure both gender specific affirmative actions were included, and the gender approach mainstreamed across the accord. However, while rejoiced by the international community, the gender approach, especially the inclusion of LGBTI rights, sparked fierce resistance among the conservative political forces in Colombia and was a decisive factor for the negative outcome of the referendum of the first version of the agreement. A renegotiated version of the accord was also arguably adopted by parliament at the cost of a more comprehensive gender approach (Cider, 2017). Equally praised by the international community but politically controversial internally was the Ethnic Chapter, which incorporates a framework for interpretation and implementation of the peace agreement from an ethnic perspective.

Although considered one of the most participative peace process in the world, the Ethnic communities were systematically excluded during the peace dialogue. Not until one month before signing of the peace agreement did the parties give in for the pressure from the ethnic communities and the international civil society and invited representatives of the Traditional Authorities to Havana with obvious limitations to impact on the just about finished agreement.

However and despite being included last minute and reduced to just three pages, the chapter makes groundbreaking recognition and concessions, such as recognizing historic and structural discrimination which allow for a discussion on historic reparations; or the inclusion of a safeguard for cultural objection.

The Colombian case illustrates well how the Peace Agreement and its implementation is a site of struggle over the norms and assumptions about gender, race, and sexuality, and how these differentiations serves political purposes such as creating and maintaining hierarchies (Boesten, 2010:4). Peace processes tend to be particularly crucial moments for disrupting stagnated norms and institutionalized violent practices since the implementation of an agreement require political and structural transformations that specifically seek to change patterns of protracted violence, as pointed out in paragraph 77 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 2013). Especially Transitional Justice mechanisms represent a unique opportunity to achieve gender equality by addressing pre-existing and entrenched sex and gender-based discrimination. The

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6 mainstreaming of transversal approaches, for example, is assumed to help close historic and structural social cleavages and prevent violent conflicts (Alvarado Cobar, et al., 2018).

The Colombian agreement is also a flagship case for a more rights based, territorial, victim centered and participative peace process. Although rather the aggregation of several transversal approaches, than a genuine intersectional perspective, it plants the seeds for what could become an intersectional peace. That is, a peace in which all forms of violent conflict and repression, across all intersecting social cleavages, are transformed, not only those forms of violence codified and recognized by patriarchal and colonial normative practices. Particularly the Ethnic Chapter makes a crucial contribution in this line, by including the ‘gender, women, family and generational’-approach which seeks a more integrated understanding of the human subject.

However, despite over three years of implementation and a generally considered successful demobilization process (Kroc Institute, 2019), the conflict has escalated in many parts of the country and particularly the border areas. Gender based and sexual violence has soared to epidemic levels in certain areas. Ethnic communities and their leaders are again over- represented among victims of the violent conflict. There have also been several national and international alerts for the risk of regression in rights already obtained, such as the right to Free and Informed Prior Consultation and Special Land rights. Similarly, although participation has been a guiding principle for the implementation as well as during the negotiation process, systematic exclusion and invisibilization of the Ethnic communities continues, and particularly indigenous and afrocolombian women lack equal representation and guarantees for effective participation in public matters.

In this sense, and building upon Judith Butler´s theoretical work on normative violence, this paper aims to make visible patterns of inclusion and exclusion in law, and further our understanding of how such violent normative practices stands in the way for more sustainable and transformative peace processes. The question raised is: What limits and opportunities does the implementation of the transversal approaches mainstreamed in the Colombian Peace Agreement pose in terms of transforming intersectional normative violence?

While other studies have explored the gap between law and its material impact, this paper will look at the impact of the Peace Agreement on the legal texts derived from it. This paper is primarily interested in the mechanisms at play that make violence possible in the first place by, and through, norms and normative practices. In order to draw any conclusions of the actual material impact of the normative violent practices on intersectional subjects, a whole set

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7 of different studies needs to be carried out. And most importantly, any such account ought to depart from the lived experience as accounted for by the victims of such abuse.

Following this introduction, section two presents previous research and develops an analytical framework based primarily on Judith Butlers theory on grievable and unintelligible life. This will allow for a qualitative content analysis of patterns of violent normative practices, described in section three. The presentation of the results starts with a description of how transversal approaches has been included in the Colombian Peace Agreement before patterns of invisibilization, exclusion, and non-recognition in the legislative implementation are analyzed. Finally, in the fifth and last section, the main conclusions are summarized.

3 Previous research - Theoretical Framework

3.1 Intersectional Peace and Justice

Intersectionality has become a popular analytical tool and framework for understanding the differential impact of different forms of violent practices, both among academic scholars and practitioners. Feminist Socio-Legal scholars, for example, have made significant progress in unmasking, deconstructing and re-signifying law in the context of structural and institutionalized patriarchal, racist and other violently maintained power hierarchies. Such violent normative practices are part of a complex system of co-dependent and mutually reinforcing structural and institutional practices that generates and perpetuates patterns of violent relationships. In this sense, feminist legal scholars coincide with recent advances in critical peace studies (Lederach, 2020) as well as system theory for sustainable peace (Ricigliano, 2015)

Thus, in order to construct more inclusive and sustainable peace elsewhere, as pointed out by Lederach, we need to identify and disrupt the patterns that generate, reproduce and perpetuate violence and violent relationships (2020). However, it is not enough to address only those forms of violence codified and recognized by patriarchal and colonial normative practices. Peace has to be intersectional and all forms of violent conflict and repression, across all intersecting social cleavages, needs to be transformed. Nor is it enough to attend to the physical materialization of violence if more structural, intangible and systemic causes are not addressed. Here, structural causes do not refer to the so called ‘root causes’ of conflict, but rather institutional, bureaucratic, normative, and other practices that protract violent and unjust behaviors and relationships.

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3.2 Transitional and Transformative Justice

Transitional Justice is a broad set of legal and extra-legal mechanisms to deal with large scale human rights abuses after war and dictatorship, especially where the ordinary system may not have the capacity or legitimacy enough (ICTJ, 2020). While originally short-term transitory processes, often dealing with a few emblematic cases of ‘public perpetrators’, and at times accused for serving the purpose of “turning the page” rather that dealing with the past in a meaningful way that transforms and heal social relations, transitional justice is now generally considered to concern the rights of the victims to truth, justice, reparation and non-repetition (Turner, 2013) Although there is still an ongoing philosophical discussion over peace versus justice, most applied scholars and practitioners seem to agree that there cannot be any sustainable peace without justice. Transitional justice mechanisms are now considered imperative, and the Colombian Peace Agreement, for example, include an entire chapter only on this issue, while also mainstreaming a transversal victims right-centered approach throughout the entire accord. Turner for example, highlights the importance transitional justice mechanism has gained and suggests that: “[f]rom its origins in political science /…/transitional justice has taken on the form of a normative framework for dealing with political transformation.” (Turner, 2013)

In the last couple of years scholars have gained an increasing interest in the gendered dimensions of transitional justice. Most early work within this interdisciplinary field of study has focused on the issue of presence and recognition, both in relation to female representation in transitional justice processes, and in terms of recognizing the particular forms of victimization of women in civil war, previously invisibilized, not least sexualized violence (O'Rourke, 2016; Simic, 2016; Coral-Díaz, 2016). At the same time, critical scholars have warned that the current focus of particularly sexualized violence against women in conflict may actually build upon and strengthen gendered stereotypes (Henry, 2014). Shifting focus from the

‘women issue’ to the problem of violent masculinities has been one way of approaching this issue (Hamber, 2012; O'Rourke, 2016). Others have argued that the discussions on gender in transitional justice have inherited the ‘colour-blindness’ of earlier feminist thinking and call for a more intersectional approach (Aoláin & Rooney, 2007). These strands of critique coincide in a view of transitional justice as not only a means by which dealing with the violent past of a country but also as a tool for positive social change, not least in terms of transforming social

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9 relations (Lambourne & Carreon, 2016; Gready & Robins, 2014; Aoláin, F. N., & Rooney, E., 2007; Bell, C., & O'Rourke, C., 2007).

Building upon this critique of traditional studies of transitional justice, Gready and Robins (2014), who write within the field of critical peace studies, introduce the concept Transformative Justice. The concept is suggested as a new agenda for practice and a work in practice. They argue that transformative justice is dependent on new forms of perceiving and tackling violence in transitional contexts, especially in terms of its gendered dimensions.

In a similar vein, Fionnuala Ní Aoláin has voiced critique against ´underenforcement´ of the transformative potentials of transitional justice in terms of advancing gender equality. She highlights the important relationship between intersectionality and underenforcement and its

“consequent impact on transitional justice processes” (2007). There is what she calls a

“translation gap” between agreement and enforcement that evidence a wider problem experienced in many transitional societies. Several root causes of this underenforcement is suggested which calls into attention the importance of broadening our conceptualization of transitional justice beyond the idea of solely ‘dealing with the past’ in terms of human rights abuses, and to include the recognition of structural inequalities and exclusions and their intersectional impact on women’s potential to participate as equals in a transitional society. This would require comprehending the totality of reforms as part of a transformative paradigm - not just the specific transitional justice mechanisms.

At the same time, it is increasingly recognized, especially among critical peace scholars, that transitional justice is part of the so-called liberal peace agenda (Björkdahl, Mannegren &

Selimovic, 2013; O'Rourke, 2016). Such “an uncritical and narrowly liberal conception of gender equality” constitutes a primary challenge and suggest that any feminist engagement with gender in transitional contexts ought to recognize transitional justice as a form of ´discursive colonization´ (Aoláin, F. N. 2012). Such ‘globalisation and normalization’ of transitional justice (Teitel, 2008 in O'Rourke, 2016:2) further highlights the inherent power dynamics of transitional justice also in terms of spatial and cultural hierarchies. By examining the ways in which legal and political narratives are framed and reproduced, Turner for example, deconstructs the opposition between law and politics which she argues is a core assumption that underlies our understanding of violence, law and politics in transitional contexts. Such deconstructive analysis may reveal both possibilities and dangers of relying on law as a means of achieving justice in transition, she argues (Turner, 2013). Building upon the work of Derrida, she argues that transitional justice should be understood as a performative force “that shapes

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10 the boundaries of how we think about justice in the aftermath of conflict” which has come to equalize “ ́justice ́ as defined in international law”. In this sense, her text also relates to the post- colonial critique of transitional justice as an ́universalistic ́ or ́eurocentric ́ exclusionary force

“whereby those who seek redress must do so in the language of transitional justice, thus inherently delimiting the narration of violence and justice” (Turner, 2013:6).

3.3 Violence, law and violent normative practices

Underlying these various arguments is a key for overcoming structural inequalities and continuities of violence, especially gender-based violence (O'Rourke, 2016:23ff). Judith Butler, in her book Frames of War, tie together her previous work and present a theoretical framework for understanding how violence against some people, certain unintelligible Subjects, is made possible through the normalization of violent normative practices (2010).

Butler is most famous for her seminal work Gender Trouble, in which she deconstructs gender to demonstrate its performative nature “that responds to the expectations and norms of society” (Boesten, 2016). Like Boesten, and in resonance with Turner’s understanding of transitional/transformative justice, this paper builds its theoretical framework on Judith Butlers’

idea that: “gender performativity hinges on the notion that we enact our gender according to normative frameworks that are historically and culturally formed” (2010:2). And not only gender, but also sex, race, and any identity forming categories. She builds upon Foucault’s bio- political understanding of how regulative discourses “set out the meaning and limits of physical and social life /…/ they provide the context and regulate our interdependency and they make subject formation intelligible, but they also restrict the possibilities of how life can be lived”

(Boesten, 2016). In addition, Kapur suggests that the operation of norms render certain persons more or less human. Focusing on international law, she comments that “[h]uman rights produce a hierarchy of who counts as human and who does not; who is more or less human, who is inhuman or unthinkable as human” (2015:270). Or as Butler puts it in Frames of Wars: “there are “subjects” who are not quite—or, indeed, are never— recognized as lives’” (2010:17).

After 9/11, Butler has applied her philosophical thinking on a broader political context in order to understand how such subject formation may violently police some subject, and even render them worthless, unintelligible and ungrievable. Butler uses grievability as a qualitative proxy to explore violent normative patterns. According to Boesten, “public grief is a political act and actively shows patterns of inclusion and exclusion /…/ which purposefully produces and reproduces an ‘us’ and ‘them’” (2015:6). Normative violence then, is the mechanism by

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11 which legal frameworks restrict and hierarchize different social categories and defines who is

‘grievable’ and who is not.

Chambers points out that “[n]ormative violence names not a type of violence that is somehow “normative,” but the violence of norms” and that it “should be understood as a primary form of violence, because it both facilitates typical, physical violence and simultaneously renders such violence invisible” (2007). According to Boesten, and in contrast to structural violence, which is the institutionalization of violent practices, normative violence refers to the process of naturalizing violence, for example, structural inequality and institutionalized racism. Like Chambers, she highlights that it is not physical violence per se, but makes it possible and, through normalization, invisible as we no longer perceive it as violence (2010:5f).

Butler argues that ‘the differential allocation of grievability that decides what kind of subject is and must be grieved, and which kind of subject must not, operates to produce and maintain certain exclusionary conceptions of who is normatively human: what counts as a liveable life and a grievable death?’ - she asks (Butler 2004, in Kapur, 2015). Paraphrasing Butler, Kapur in her article on sex-workers, describes how law circumscribe the possible existence of the subject: “The sex worker is recognized only as a victim to be rescued. /…/The very framing of the industry through the lens of trafficking erases all subjectivity and choice”

(2015:272).

Thus, Butler’s theoretical framework helps us understand the normative implementation of the peace agreement in Colombia as a site for political struggle over who and how one becomes grievable. During conflict transformation and peacebuilding, the social and political system is per definition destabilized, which makes resistance to exclusionary structures and norms more plausible to succeed in terms of overcoming structural inequalities and violent practices. At the same time, there is also a risk for the cementation of engrained violent practices - the making of a permanent state of emergence or the infinite enemy - or the intent to restrict the scope of the transversal perspectives included in the peace agreement. For example, by reinterpreting the gender perspective to the issue of women rights and specifically female representation within the heteronormative patriarchal order, or the circumscription of the female legal subject to victimhood.

In the following section an analytical framework is developed, which will allow for a qualitative content analysis of the new legal corpus produced during the Fast Track procedures, which was a temporary, abbreviated legislative process intended to speed up the

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12 implementation process during the two-first years, so as to set into place the necessary constitutional and legal guarantees for continued implementation, also after a change in Government. Through this analyst opportunities and limitations will be identified, and also new knowledge on how to interrupt and prevent new cycles of intersectional violence in Colombia will be generated.

4 Method - Analytical Framework

The theoretical framework spelled out above, situated within the field of critical feminist social- legal studies, explain how normative violence operate within our current social and political system, and makes possible the perpetuation of other forms of direct violence against certain unintelligible and ungrievable lifes, defined along intersecting lines of race, gender, and class inequalities. Three dominant types of normative violent practices are characterized by previous studies on normative and intersectional violence based on Butlers theory: invisibilization, exclusion and non-recognition. In this section an analytical framework is developed, based on Butlers theory and other authors application of her theory, that allows for the conceptual content analysis of the legal corpus to identify patterns of normative violent practices.

4.1 Qualitative conceptual content analysis

A conceptual content analysis ”focusses on interpreting and describing, meaningfully, the topics and themes that are evident in the contents of communications when framed against the research objectives of the study (McNeill & Chapman, 2005). By counting the relative prevalence of specific signifiers that interpellate different Subjects defined along intersecting power hierarchies, such as gender, race, and territoriality, and analyzing its relational and textual context, a conceptual content analysis may unveil patterns of inclusion and exclusion, of unintelligibility and recognition.

A signifier makes reference to a specific word, term or concept in the text. According to Derrida, there can never be a 100% match between the signifier and the signified - the latter being the actual phenomena the sender of the message intend to portray with the signifier (Augustyn, et al, 2019). The notion could be compared with Platon's theory of ideas. Derrida developed deconstruction as a method to explore and challenge the oppositions “inherent in Western philosophy since the time of the ancient Greeks, [and] are characteristically ‘binary’

and ‘hierarchical’” (Augustyn, et al, 2019).

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13 Critical Legal Scholars, in particular, have made use of deconstruction of legal writings

“to reveal conflicts between principles and counter principles in legal theory. The movement explored fundamental oppositions such as public and private, essence and accident, and substance and form”(Augustyn, et al, 2019).

The qualitative conceptual content analysis is particularly concerned with the relationship between signifier and signified, on the one hand, but also with the relationship between different signifiers in its textual context. In this paper, the Subject with capital letter makes reference to the Subject interpellated in the text, whereas the subject, in minuscule, makes reference to the material and embodied experience of the subject. The form of the subject, in platonic terms.

Althusser made use of the terms hailing and interpellation to differentiate between the acts of enunciation (hailing) - and interpellation, which require the subject to acknowledge the hailing, and consequently accept or appropriate the defining - binary and hierarchical, characteristics of the Subject interpellated. Building upon this theory, Derrida introduces the term différance “meaning both a difference and an act of deferring, to characterize the way in which meaning is created through the play of differences between words. Because the meaning of a word is always a function of contrasts with the meanings of other words…” (Augustyn, et al, 2019). For example, the word woman when groped and associated in a reiterative way with other key signifiers, such as ´children´, ´mother´ ´family´, or ´widow´ the meaning of the word takes form. The derridian deconstruction also seeks to make visible the absences in the text, which he refers to as traces (Augustyn, et al, 2019). Who are rendered invisible? Unintelligible?

An initial counting and categorization of signifiers helps to depict an initial, superficial image of the legal corpus analyzed and the patterns of violent normative practices and resistance to such violence. Each key signifiers is analyzed in its relational and textual context and discussed in relation to the opportunities and limitations for transforming violent normative practices identified in the Colombian Peace Agreement. However, it is the analysis of differénce, oppositions, absences and iterative interpellations in order to make visible violent normative practices in the legal corpus produced by the fast Track procedure in the Colombian case.

4.2 Operationalizing normative violent practices

Previous studies have characterized three dominant types of normative violent practices:

invisibilization, exclusion and non-recognition. However, since the three forms of violent

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14 normative practices are in a sense undone by their definition as absence, in order to identify these ´absences´ in the text, the opposite signifiers will be located. That is to say, in order to better understand who is excluded or rendered unintelligible, for example, we will identify those subjects who are made visible. We could also understand such conceptual opposites as practices of resistance against normative violence, namely: recognizability, inclusion and recognition. In that sense, we may understand these three forms of resistance against violent normative practices as indicators of grievability.

4.2.1 Recognizability - invisibilization/unintelligibility

Recognizability, according to Butler, characterizes the most general conditions which “prepare or shape a subject for recognition—the general terms, conventions, and norms “act” in their own way, crafting a living being into a recognizable subject’” (Butler, 2009). As it describes the general conditions under which recognition is possible, it is inevitably prior to recognition and inclusion (Butler, 2010).

In order to identify or ´measure´ of such recognizability in the legal text, the mainstreaming of transversal approaches will be used as a qualitative proxy. Mainstreaming has been promoted as a key strategy for more inclusive law and policy for many years and is incorporated in a comprehensive and systematic way in the Colombian Peace Agreement. 6 transversal approaches are explicitly mentioned in the peace agreement: gender, ethnicity, territoriality, differential approach, and Human Rights perspective.

The enunciation of transversal approaches does little more that outlining the contours of possible Subjects. It is still unintelligible life, in a certain sense, since a perspective or approach does not embody actual life. This is a point often made by the Ethnic Commission in Colombia, who have argued that they have never asked for the transversalization of approaches - their interest is in guaranteeing affirmative and differential mechanisms to overcome the structural inequalities that put at risk the physical and cultural persistence of the Ethnic Communities in the country. The Economic and Social commission of the United Nation has defined gender mainstreaming as:

The process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at all levels. It is a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally and inequality is not

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15 perpetrated. The ultimate goal is to achieve gender equality. (Economic and Social Council, 1997).

The language is notably passive and make no space for an active Subject. However, such definition of gender mainstreaming makes visible the absence of all subjects that fall outside a binary conception of gender as biological sex. It could also be said to make unintelligible the plurality of women's experience and neglect other intersecting forms of discrimination. It also renders invisible the structural inequalities between men and women. And as such, it simultaneously serves as an example of how the most incipient interpellation evoke the limitations of the possible Subject, and although intending to promote gender equality, simultaneously protract violent practices of exclusion. Thus, it illustrates well how recognizability is a necessary but not sufficient element of an intelligible life.

4.2.2 Inclusion - Exclusion

Inclusion is here understood broadly as overcoming the social, political, economic and cultural exclusionary practices that causes social divisions, inequalities and discrimination.

Participation, access to public goods and services, and prioritized attention to specific population groups, all fall within this analytical category. They all share the common trait of attending to power inequalities in society by some kind of affirmative action with the aim of guaranteeing equal rights.

Bell suggests that: “adopting a gender perspective involves analysis of how the on-going political bargaining processes of a particular conflict context, relate to the power relationships between men and women. This approach builds on the power-analysis dimension outlined above, to question how peace negotiations and peace agreement implementation efforts will affect power relations not just between the parties to the conflict, but between men and women.”

(Bell, 2015).

4.2.3 Recognition

If inclusion addresses equal access to equal rights, recognition in contrast deals with the acknowledgment of difference, specific needs and special rights. As Christine Bell puts it,

“particular needs that need to be specifically addressed if they are to be treated equally.”

(2015:8). In the case of women, such differential measures might be related to sexual and gender-based violence or labor market policy that consider the uneven distribution of unpaid domestic work or activities of the economy of caring. In the case of the ethnic communities,

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16 these could be related to the special collective rights to land and autonomy, or special protection mechanisms to safeguard the survival of the community.

It is important to note that many authors also include in their analytics frameworks variables of analysis related to (i) participation and (ii) differential impact. While these factors are of crucial importance for a more comprehensive understanding of the workings of normative violence, this study will concentrate only on the analysis of the legal corpus as such.

Participation, which would proceed the adoption of a final document of the Colombian Peace Agreement, is rather analyzed as a prerequisite for effective inclusion of transversal approaches in the normative text. It is also important to note that affirmative actions to guarantee effective participation, are accounted for, but as an integral part of the broader category of inclusion.

Differential impact, on the other hand, would require a much more in-depth study which still would be precipitous given the 15-year time frame for the implementation of the Agreement.

5 Analysis

In this section the results of the analysis of the normative body born out of the implementation of the Colombian Peace Agreement is presented. The first sub-section analyze the Colombian Peace Agreement and explore in what way the inclusion of transversal approaches may interrupt patterns of intersectional normative violence by identifying signifiers of resistance to such violent practices. Then, a description of the results of the conceptual text analysis of the legal corpus is presented and discussed.

5.1 Transversal approaches in the Colombian Peace Agreement

As noted in the introduction, the Colombian Peace Agreement has become recognized world- wide for being one of the most progressive in terms of incorporating transversal perspectives and attending to underlying structural conflicts along several intersecting social cleavages. It provides clear definitions of the Differential, Gender, and Territorial approaches either in the prologue and introduction or in the sixth chapter on implementing mechanisms. All approaches include both measures for inclusion and recognition and the explicit call for an implementation

‘in a cross-cutting manner’, i.e. mainstreaming.

The definition of the differential approach is rather elusive and without clear Subject, and more than a cross-costing approach or transversal perspective, it seem to point towards the kind of differential measures included as indicators of inclusion, with emphasis on equality of opportunity:

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17 [Differential approach] Respect for equality and non-discrimination: The implementation of this Agreement shall respect equality in all its aspects and equality of opportunity for everyone in accessing the different plans and programmes provided for in this Agreement, without any form of discrimination. Nothing contained in the Final Agreement shall be understood or interpreted as denying, restricting or infringing the rights of individuals, regardless of their gender, age, religious beliefs, opinions, ethnic identity, on account of their membership of the LGBTI community, or for any other reason; nor shall it be understood or interpreted as denying, restricting or infringing the right to unhindered development of the personality or the right to freedom of conscience (Colombian Peace Agreement, 2016:204).

The contours of the possible Subject is recognizable regardless of gender, age, religion, political views, ethnicity. Hence, the differential approach seem to make differential measures accessible to all since any infringement on individual rights are understood as equally unjust. This of course counters the original objective of a differential approach. Nonetheless, as such it also illustrates recognizability as a necessary but not sufficient precondition of recognition. It is interesting to note, that although the various identity categories might seem ad hoc, they reflect well the same social cleavages and conflicts underlying the polarized debates for and against the peace agreement prior to the referendum.

Especially in the case of LGBTI rights, this is very much relevant, as it is generally considered as part of the gender approach. However absurd it may seem for an outside public, the argument that the peace agreement was part of a gender-theory conspiracy after an educational publication on sex and sexually circulated in high schools on the Atlantic coast, was taken serious by many, especially right-wing religious fanatics, proven effective to mobilize voters. LGBTI rights was also the issue area that suffered most after the revision of the Peace Agreement, after marginal victory for the no-campaign in the referendum. The definition of the gender approach for example, as noted bellow, is notably restricted to the binary understanding of gender as the equivalent to the biological-sex.

Gender-based approach: In this Agreement, the approach to gender means recognition of equal rights for men and women and the special circumstances of each person, especially those of women, regardless of their marital status, life cycle and family and community relationships, as enjoying rights and special constitutional protection. In particular, it implies the need to guarantee affirmative measures to promote that equality, active participation by women and their organisations in peacebuilding and recognition of the victimization of women as a result of the conflict.

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18 To guarantee true equality, it is necessary to put forward affirmative measures which respond to the disproportionate impact which the armed conflict has had on women, in particular sexual violence. With regard to the rights of victims, their protection includes differential treatment which recognises the causes and the disproportionate effects which the armed conflict has had on women. Moreover, differential action must be taken to enable women to access the plans and programmes contained in this Agreement on equal terms. Participation by women and their organisations and the equitable representation of women in the different areas of participation must be guaranteed. The gender-based approach must be understood and applied in a cross-cutting manner in implementing the whole of the Agreement. (Colombia Peace Agreement, 2016)

Also, the Territorial Approach demonstrates well how such recognizability may be vague in the hailing of the Subject. On the one hand, there is the Communities, with particular economic, cultural and social needs. Also, the participation of all citizens, territorial-based authorities and various sectors of society. Again, the underlying inequalities that have given raise to the transversal approach is invisible, silenced, unintelligible in the text:

[Territorial approach] The territorial-based approach of the Agreement requires recognition and consideration of the economic, cultural and social needs, characteristics and peculiarities of Colombia’s territories and communities, thereby guaranteeing socio-environmental sustainability; furthermore, it involves implementing the various measures comprehensively and in a coordinated way, with the active participation of all citizens. All of Colombia’s regions and territories will contribute to the implementation of the Agreement, with the participation of territorial-based authorities and the

various sectors of society. (Colombia Peace Agreement, 2016) Also, the contours of the Territorial Subject, is made recognizable in this definition, who's economic, cultural and social needs are related to socio-environmental sustainability. This is particularly interesting taken into consideration recent advances in the formalization of the environment as legal subject. Colombia for example, has declared five areas of environmental importance at risk legal subjects with the right to protection, conservation, maintenance and restauration. While this well may be another key step towards expanding our understanding of rights and justice. But it also takes to show the environment becomes recognizable when adhering to the structures given of the human judicial order. Only as a legal subject can you be guaranteed protection.

Both the gender and territorial approaches are also transversally incorporated throughout the 300-page long peace agreement and incorporate both differential and affirmative

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19 actions. For example, affirmative action for equal representation and participation or differential measures to safeguard the special rights of the ethnic people to the territory or specific measure for inter-jurisdictional articulation. While this is true also in the case of the ethnic perspective, it is not so in the same extent. ‘Territorial-based’- is mentioned 61 times, and ‘gender-based´ 45 times, throughout the peace agreement. ‘ethnic-based’ is only mentioned three times in total and one time outside the Ethnic Chapter.

Nor was such inclusion of specific measures for ethnic people the result of a participatory process throughout the dialogue process. This does not only deduct legitimacy but may be questioned if genuinely reflect the full extension an ethnic approach (Bell, 2015). The Ethnic Chapter also seems to address this by spelling out the international and national legal body as interpretative framework for the entire implementation process: “In interpreting and implementing all the components of the Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace in Colombia with an ethnic-based approach, account is taken of the principles enshrined in legislation at the international and constitutional levels, case law and legal regulations” (Colombia Peace Agreement, 2016) and pass on to mention several specific norms, conventions and guiding principles. As for example: non-regression or the guarantee for participation and consultation and prior free and informed consent. Although the Ethnic Chapter includes both affirmative and differential measures, it maintains quite general in its formulation, but consistent in its referral to the legal framework that spells out the special rights of the ethnic people. This makes the Peace Agreement only the tip of the iceberg for the possibilities of an Ethnic Subject to be and direct our attention to documents.

Further along the Ethnic Chapter, the inclusion of an intersectional, cross-cutting approach “encompassing ethnicity, gender, women, family and generation” throughout implementation, is also made recognizable. This makes the Ethnic Chapter unique in mentioning explicitly the inclusion of an intersectional approach.

This formulation also stand in stark contrast to the first hailing of the ethnic people, found in the preamble: “that the new Final Agreement places special emphasis on the

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20 fundamental rights of women, of vulnerable social groups such as indigenous peoples, girls, boys and adolescents, communities of African descent and other ethnically differentiated groups; the fundamental rights of the small-scale farmers, both male and female, and the essential rights of persons with disabilities and of those displaced by the conflict; and the fundamental rights of the elderly and of the LGBTI community” Before moving on, it is important to note how these signifiers are grouped in three :

(i)women and vulnerable social groups such as indigenous peoples, girls, boys and adolescents, communities of African descent and other ethnically differentiated groups

(ii) small-scale farmers, both male and female, and the essential rights of persons with disabilities and of those displaced by the conflict

(iii) elderly and of the LGBTI community

Indigenous people and communities of African descent are conceptually associated with children, youth, women and vulnerable social groups. Taken together, these signifiers make recognizable a clearly gendered, racialized, and underaged and defenseless Subject. The small- scale farmer, the producer, is conceived as a man, therefore the interpellation of the Female Farmers stands out as a counteraction, resistance, to that notion, but do so in a biological sex bound binary. By including in this groups of associated words subjects with disabilities (which reflect a shift in use of signifier for the same signified, in a way to intent reinstall agency to that Subject) and displaced people. Taken together then, a merely economical subject seems recognizable. The essential rights to be guaranteed seems directed primarily to reinstall the productive capacity of the citizen. Whereas, and in what almost seems like a sequential ordering of the Subjects, the LGBTI community is associated with the elderly, unproductive and to a certain level disposable citizen from an economical perspective. While some might argue that such formulation is nothing but an unfortunate coincidence, a typing error, or simply not of relevance, these seem like implausible arguments given the many years and political considerations taken into account for each word and phrase.

5.2 Patterns of violent normative practices in the Fast Track implementation

In total 47 laws, decrees and decree-laws was passed through the Fast Track procedure, which required strict association with the accord implementation and posterior constitutional review (also with an abbreviated procedure). This includes a broad variety of laws including very

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21 general framework laws, such as the fiscal reforms, or constitutional changes enabling the creation of the Special Jurisdiction for Peace, or specific plans and policies for the implementation of particular measures of de agreement, such as the National Plan for Rural Electrification.

The norms are distributed along the six different points or chapters of the peace Agreement as shown in the table below: Integral Rural Reform, Participation, End of the Armed Conflict, Solution to the Illicit Drugs Problem, Victims' Rights and Verification and Public Endorsement.

Roughly two-thirds of the norms (61%) include one or more transversal approaches, unevenly distributed over all six points of the agreement. All laws related to the Rural Reform included one or more transversal approaches whereas only 25% of the norms concerning the implementation mechanisms included at least one transversal approach.

The norms that develop point sixth of the Peace Agreement concern different kinds of guarantee mechanisms, including financing, monitoring and control, and international accompaniment.

Specific mechanisms for transparency and citizen participation is also part of the sixth chapter as well as the Ethnic Chapter. While some might argue that these are structural reforms that apply equally on all citizens, such assumed neutrality of law has been effectively debunked.

Particularly in terms of financing, it is remarkable that the inclusion of transversal approaches is overseen, as the Ethnic Chapter, but also elsewhere in the peace agreement, the importance of guaranteeing additional recourses for the effective implementation of the transversal approaches and facilitate through participative and gender sensitive budgeting (Peace Agreement, 2016: 50; 221).

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5.3 Recognizability

In order to identify what Subjects are made recognizable in the new legal framework produced through the Fast Track procedure, we need to unpack the various signifiers in their textual context. With over two-thirds of the new laws incorporating some kind of transversal approach, there seem to certain continuity in the opportunities created in the Peace Agreement for resisting normative violent practices. The differential approach is mainstreamed in 37% of all Fast Track Laws (61% the laws with any transversal approach). Gender and territorial approaches are mainstreamed in 37% of the laws respectively.

The Ethnic Approach is included in ‘a cross-citing manner’ in 24% of all Fast Track Laws, being the transversal approach least interpellated in the legal corpus. Almost half of these laws concern the Rural Reform. While on the one hand, this seems to reflect well the lag in implementation of ‘ethnic measures’, as reported by the Kroc Institute which is in charge with the monitoring of the implementation, also in comparison to gender implementation for example (Kroc Institute, 2019). On the other, there seem to me a progress in terms of transversalization, in comparison to the Peace Agreement.

Nonetheless, exclusion during the formulation of the laws, and violations of the right to prior consultation and informed consent has been denounced repetitively and by various actors, including international actors such as the United Nations. As the systematic revision reveals, only 4 out of the 46 Fast Track-laws was partially consulted with one or two of the three communities recognized as special legal subjects of such right in Colombia. All except one of these consulted laws make explicit reference to all transversal approaches in the Peace Agreement and makes specific mentioning of all special legal subjects interpellated there, although in varying degree. It is interesting to note though, that Prior Consultation is not a guarantee for the inclusion of other transversal approaches. In the case of the law on Pay for Environmental Services (Decree 870, May 28, 2017), for example, was consulted by the Indigenous People. However, the lack of a gender perspective is evident and there seems to be a continuation of interpellation of a rural worker that is perceived as male. It is also notable that the Ethnic Subject interpellated in this specific law, is clear in its indigenous contours, but the afrocolombian or Romani Subject is vague. As will be noted bellow, there is no differential measures spelled out for the afrocolombian communities in this law. They are only recognizable, not recognized.

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23 The propensity to refer to the more general and elusive differential approach rather that the more concrete and specific gender, ethnic and territorial perspectives, is also a limitation for transforming violent practices. As noted above, this is also an issue in the Peace Agreement where an almost infinite list of recognizable Subjects, especially since it interpellate through vague or intentionally ample signifiers. As for example the definition of the differential approach cited above, including “protection of the individual right to unhindered development of the personality or the right to freedom of conscience”. The signifier looses meaning as it does not seem to coincide with any actual subject, the Subject is still unintelligible.

It is also necessary to unpack the many signifiers for identity categories found under Other. Table 3 in appendix 1 summarizes the results of such disaggregation.

Given the nature of a peace agreement and especially one proclaiming centrality of victims' rights, it should be of no surprise that most laws include this transversal perspective. However, so has not been the case generally historically, neither in Colombia nor in other countries. It could be an opportunity for a broader understanding of transitional - or transformative justice, to incorporate reparative, restorative and reconciliatory actions in any public policy, regardless of sector, so as to contribute to the peaceful transformation of conflicts.

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5.4 Inclusion

Guarantees for equal participation of men and women is the most common type of mechanism for inclusion, but also for ethnic communities or rural farmers. Participation is in itself a guiding principle of the Peace Agreement and is generally considered a sine qua non of sustainable peacebuilding. As discussed above, it can also be considered a necessary precondition for guaranteeing the continuous incorporation of the transversal approaches throughout the implementation, and at other levels and sectors of society. However, like in the Peace Agreement, participation is primally circumscribed to Subjects defined by their biological sex:

men and women. Such formulation also hides the structural inequality which has made necessary affirmative actions for women in the first place. Men and women are treated as equal.

There are important exceptions though, that resist such violent normative practices. For example, in the national Committee for Peace, Reconciliation and Coexistence, in which

“women, youth, and other excluded sectors from politics” are granted affirmative actions for their participation. Here then, there is a clear recognition of historical and structural inequalities at heart. This contrasts well with the guarantee measures for representation. Measures such as designated chairs and quotas are intended to overcome such structural inequalities, although this is not necessary mentioned explicitly. However, such measures clearly demonstrate the low ambition for female representation and participation. In Colombia there is a general 1/3-policy for political representation for example, which is referenced in various of the new laws, as for example the Statute of Opposition (Law 1909, July 9, 2018). It is interesting to not how carefully a possible female majority is cared against, whereas the continued under- representation of women and ethnic communities is normalized.

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25 Representativity through single-chair designation, also becomes problematic when dealing with the Ethnic communities for example, which in Colombia means 105 indigenous communities (36 in way of extinction in 2018) (CEJIL, 2018), 4 different communities with afrocolombian descent, and the Romani community, put at risk the invisibilization and the silencing of certain voices. It is notable, for example that there are several very specific measures for the indigenous communities, but there are no similar guarantees for the afro-Colombian people. Studies have shown that such practices are perpetuated in the institutional setting, where competence or representation of indigenous people serving as a way to tick the ethnic-approach box, but are practices operating under the same racist logic.

The laws are also full of contradictions, such as the phrase: “Incorporate the women as active subjects in the process of voluntary substitution [of illegal crops]”. (Decree 896, May 29, 2017)

While there is obviously a good intention behind this measure, it reveals the understanding of the passive woman as being the normal (here resisted against) and makes

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26 possible the notion of incorporating a woman as a passive subject. Indeed, it is not the woman who is actively participating - she is incorporated, and allowed to be active, by someone else.

Several affirmative measures are directed towards a specific female, rural Subject, often in relation to children and youth, or as widow She can be the head of the household, a community mother or as part of a family. Hence, the measures for inclusion makes more tangible the concourse of a Subject at the intersections of gender and territorial exclusion and discrimination. However, such Subject is strictly policed by governing norms. There is no space for a lesbian campesina, a transsexual indigenous person, or even a childless single cis woman.

For example, in the National Plan for Rural Housing access to differential measures are given to “women head of the family and communitarian mothers that inhabit the rural ground”.

(Decree 890, May 27, 2017)

Although there is no clear Subject at the intersection of gender and race, the Ethnic subject is clearly “territorialized”. The Ethnic subject appears together with the rural woman, the campesino and the displaced, and are located in the rural-territorial context. However, this makes the urban ethnic Subject invisible.

5.5 Recognition

Whereas measures for inclusion tend to structural exclusion and equal opportunities for equal rights full recognition requires differential measures attending to the particular needs or rights of Subjects historically excluded and invisibilized. Recognizability and inclusion are not guarantee that the interpellation of the Subject fully recognizes the subject. As has been demonstrated above, inclusion can condition and circumscribe the Subject in exclusionary ways or serve to police the subject and normalize violent practices.

Recognition requires the acknowledgment or admission of the differentiating characteristics of certain historically excluded subjects which have served to justify such violence, such as race or gender. On the one hand, and as a first step, the mere recognition of such difference is important, as it may help reshape the discourse around the conflict and it´s so called root causes. In the Ethnic Chapter, for example, the historic victimization of the ethnic communities was recognized, making explicit reference to slavery and colonization. Law 1876 of 2017 for example, declare that all actions and strategies of the National System for Agricultural Innovation, for example, shall “recognize that persons have particular characteristics given their age, gender, ethnicity, disability situation, income and/or patrimony

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27 or any other special condition, as for example the condition of victim in the terms of Law 1448 of 2011”.

On the other hand, in order for recognition to serve as resistance to the violent normative practices, it needs to include specific measures that recognizes and attend to the special needs and rights of certain subjects. Over 50% of the Fast Track norms include some differential measures. Roughly a fourth of the laws include a differential measure for the ethnic communities and a fifth of them differential measures for women and children. These two later signifiers almost always come in pair, continuing a historic pattern of recognizing the Female Subject only as mother and carer. Indeed, rather the serving transformative gender relations, the interpellation of the female Subject seems to cement gendered stereotypes and unbalanced power dynamic. This is illustrated by the differential measures included for recognition of ‘the economy of care’ but only when carried out by women (Decree 902, May 29, 2017). (See table 4).

Most differential measures are directed towards the Ethnic communities, and especially the Integral System for Justice, Truth, Reparation and Non-Repetition are very consistent, comprehensive, and detailed in the incorporation of differential measures. However, there is a big difference between indigenous, afrocolombian and Romani people. The Pay for Environmental Services Law, for example, is very detailed in describing differential measures for indigenous peoples and recognizes the Traditional Authorities and their Autonomy. It gives

“special consideration to cultural and spiritual intangibles” and considers “its close relationship with the natural order and the conditions for good living and full life for the indigenous people”

(Decree 882, Mayo 26, 2017). However, there is no similar recognition of the communities with African descent. Similarly, in the law on education in the special peace zones, only indigenous special education is contemplated (Decree 892, Mayo 28, 2017). Also the Special Jurisdiction for Peace, recognizes the indigenous special jurisdiction, but make no explicit reference to articulate with afrocolombian traditional law. The afrocolombian Subject is maintained not fully recognized, not fully intelligible.

It is also notable, that the only time differential measures for the Romani people, a semi- nomad community, completely invisibilized in the Peace Agreement, are included is related to the right to land and private property. It is not considered in any other context than that of land- distribution, an otherwise notoriously difficult right to access. Thus, the Romani Subject becomes recognized only when adopting to the norms of majoritarian society, and thus are forced to abandon some of their tradition practices or remain unrecognized. It is important to

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28 remember that Romani people asking for such measures, is part of the normalization process.

And culture does of course constantly change and adapt. The whole notion of differential rights though, is based on the understanding that special protection is needed against violent practices exercised by dominating powers and ideologies. As such, differential measures that grant recognition only when conforming to dominating paradigms of intelligible life, may serve to violently police the subject, rather than transform current relationships and power structures.

The LGBTI Subject is interpellated four times, each in relation to particular forms of victimization, particularly gender-based violence. Thus, such Subject seems recognized only as a victim, with no other recognizable traits. Thus, the implementation of the Peace Agreement, despite including specific measures for non-stigmatization, as in the fiscal reform (ref), for example, still tend to replicate violent normative practices that limits the possibilities to fully recognize the LGBTI subject. It may serve as example of how the legal texts becomes the site of resistance and the vindication of special rights, but that such struggle simultaneously is restricted and repressed - governed, by the dominating norms.

Two other Subjects addressed with differential measures merit some attention. The issue of land and territory has always been at heart of the Colombian conflict. However, the notion of a territorial approach, and as demonstrated above, the recognizability of a Territorial Subject is something novel. The normative implementation seems to further push the normalization of the Territorial Campesino Subject, through reiteration and inclusion of specific measures. The primary identity markers are rurality, small scale farming and poverty, and several of the laws place territorial inequality at the center of the justifying argument for such special measures (for example Decree 882 Mayo 26, 2017). The Development Program with Territorial Approach, for example aims to “revert the effect of misery and conflict”, which revels an idea of the rural areas as a site of misery, independently of the armed conflict. The Integral Rural Reform, on the other hand, mentions the migration of youth from the rural areas to the urban centers, and describe it to cause “a big sociocultural void” (Decree 902, May 29, 2017). Such recognition of a Territorial Campesino, subject is noteworthy give the fact that Colombia is one of the countries who have chosen not to sign the United Nations Declaration on the Rights of Peasants (United Nations, 2018).

Also, the Environment is interpellated as a separate Subject of special protection. Such Environmental Subject was made recognizable, but naturally it is difficult to imagine measures to guarantee the equal rights of nature and human. It makes sense that any measures attending to the rights of the Environment should be differential. The laws are still vague and primarily

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29 recognizes another victim of the armed conflict, who has been impacted in a differential way and is in need for special protection but without specifying any differential measures. This is not surprising since the recognition of the Environment as legal subject is still a new phenomenon with little legislative developments. It is an interesting change and reconceptualization of the red conflict and its consequences.

Finally, one might also ask if there is a limit to who could and should be included on equal terms. This question takes us back to the open definition of the differential approach. For example, in the case of the CEV, after a long list of victims that has suffered from the conflict, cattle farmers are included. This may be seen as an important step to transform our imaginary of victims and perpetrator, as an important step to reconciliation. However, the role of cattle farmers in the Colombian conflict is complex, and in recent decades has an unflattering relationship with paramilitaries and drug cartels. However, it is of course true that many cattle farmers have been victims of the guerrilla warfare, not least by so called war tax and during one period, systematic kidnappings.

6 Discussion and conclusion

The Colombia Peace Agreement has broken new ground in the incorporation of transversal approaches that aim to overcome structural inequalities that operates along several intersecting identity markers such as race, gender, class, age, territoriality, etc., and make peace more inclusive.

A qualitative concept content analysis of the new legal corpus produced during the Fast Track procedures and based on Butlers theory of grievable and unintelligible life, demonstrate that although 61% of the new law incorporate some mainstreaming or affirmative or differential measures. A very broad set of Subjects are interpellated and leave room for inclusive interpretation. Laws that have guaranteed a participative formulation process are much more inclusive of transversal approaches. There are also both a broad set of affirmative and differential measures that look to overcome structural inequalities and exclusionary practices, on the one hand, and the invisibilization of differential experiences that renders unintelligible certain subjects.

Notable is the recognizability and incipient recognition of an intersectional territorial or campesina subject. This is particularly interesting as it reflects an ongoing dispute in Colombia over the full recognition of such legal subject. It also reflects a global shift towards the recognition of the environment as a legal subject with special rights and needs.

INTERSECTIONAL PEACE: Opportunities and Limitations of the Colombian Peace Agreement for Transforming Violent Normative Practices