Law Critique (2014) 25:47–66

DOI 10.1007/s10978-013-9127-z

Historical Injuries, Temporality and the Law:

Articulations of a Violent Past in Two Transitional
Scenarios

Alejandro Castillejo-Cuéllar

Published online: 16 November 2013

 Springer Science+Business Media Dordrecht 2013

Abstract This paper deals with the connections between historical injury and
temporality in two transitional scenarios, and explores how the National Unity and
Reconciliation Act of 1995 (South Africa) and the Justice and Peace Law of 2005
(Colombia) ‘articulate’ particular conceptions of ‘violence’ as well as conceive the
prospect of an imagined new future. I argue that in trying to grasp the multiple
dimensions of violence through different mechanisms, collective languages insti-
tuted by State-sponsored laws that seek ‘national reconciliation’ fail (in countries
defined by historical, chronic dispossession) to render intelligible—at the very
moment of their enunciation into a legal language—the structural dimensions of
violence that are at the root of conflict itself. In this regard, the text concentrates on
the ways in which difference and inequality—despite the promise of the newness
reiterated by Transitional Justice paradigms—are woven together into a longue
durée that lies beyond the theoretical contours and the technical mandates defined
by and inherent to these laws.

Keywords Colombia  Historical injuries  South Africa  Transitional

scenarios

3. If national and local governments are genuinely interested in contributing

by providing fair and constructive reparation, they must begin to recognize
that the injury caused to the first peoples (pueblos originarios) has occurred
over a long period and that it is not enough simply to count the number of
recent victims, or to quantify the cash payments that have been offered in
compensation for the material damage caused.
The Ten Commandments of Indigenous Peoples (Barbosa 2011)

A. Castillejo-Cuéllar (&)
Department of Anthropology, Universidad de los Andes, Bogotá, Colombia
e-mail: acastill@uniandes.edu.co

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Violence and Temporality

In this paper I want to highlight the connections between ‘violence’ and

‘temporality’ in two transitional scenarios, South Africa and Colombia, and
explore how what I refer to as laws of national unity and reconciliation conceive the
promise of an imagined new future (henceforth the Law or Laws). I use the term
scenario to refer to the assemblage of interrelated discourses, expert knowledges,
and institutional practices put in place by these legal arrangements in order to face
the effects of human rights violations. In this regard, I am interested in exploring
how these assemblages are articulated and, like other technologies, applied to
different contexts. The first one is recognized as a transition, while the second one is
framed as a ‘transition in the middle of conflict’: a transition yet-to-come, a promise
to be fulfilled. Despite their broad differences, I take these countries because both
have a history of profound, historically rooted inequalities, unresolved by the
promise of the newness.
I take a recent declaration made by the Organización Nacional Indı́gena de
Colombia as a way to pose a more general question about the unintelligibility of
collective suffering. The violence it alludes to refers to a larger temporality that
exceeds mainstream conceptualizations and legal-technocratic approaches that
inform these scenarios. The history of indigenous communities in Colombia, as well
as in other post-war countries, is one of exclusion, chronic inequality and the
structural and material conditions that continue to define their existence despite
important legal developments since the 1991 Constitution.1 Their experiences
embody certain kinds of violence, I call them ‘historical injuries’, that fall beyond
the ‘legal epistemologies’ that inform global applications of transitional mecha-
nisms. I call this epistemological blind spot ‘endemic’—to the Law—(Halewood
1995). It speaks of forms of violence that are not conceived (within certain
theoretical architectures) as such, and therefore are not subject to policies of
reparation—either because they are situated in a far-off, neutralized past (the formal
colonial past or the slave past) or because they are now subtlety framed by
discourses of ‘national unity and reconciliation’ that compel a society to ‘look to the
future’, to ‘turn the page’, to ‘leave the past behind’, and to forgive and reconcile in
a ‘post-violence’, ‘post-conflict’ society (Corntassel and Holder 2008).

1
The Organización Nacional Indı́gena de Colombia states that due to ‘demographic fragility, together
with other complex processes, such as internal armed conflict, poverty, discrimination, and institutional
abandonment (…) [Indigenous peoples are] in grave risk of physical and cultural extinction. (…) [T]he
poverty that affects [them] is related to the imposition of a dominant culture, based on market capitalism
(…) when imposed, it destroys our cosmovisions, languages, traditions, territories, and ways of life. This
imposition increases and perpetuates what the dominant [mayoritaria] society has conceptualized as
poverty. (…) As was revealed, 75 % of indigenous children suffer from malnutrition’, and in some
particular communities ‘chronic malnutrition increases up to 85 %. According to the traditional methods
of measuring poverty, the situation of indigenous peoples is as follow: 63 % of the indigenous population
lives under the poverty line, and 47 % are under the line of misery; in other words, they do not have the
income to buy the minimum daily food requirements’. In the case of health and educational services, the
average among indigenous communities is also significantly lower compared with the averages of other
segments of society. It calls this historical pattern ‘structural discrimination’ (Organización Nacional
Indı́gena 2010, p. 21).

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Historical Injury, Temporality and the Law 49

In countries where long-standing political and economic imbalances have

structured the everyday, the promise of a new nation that is implicit in transitional
justice discourse poses a series of critical questions. How are historical injuries
‘repaired’? Do laws of national unity address such issues or are they structurally
unable to address them? (Johnstone and Quirk 2012; Rodrigues-Garavito 2010;
Mosquera-Rosero 2007). Furthermore, is it possible to speak of harm as an
accumulative phenomenon (even over centuries); a kind of existential palimpsest in
which layers of collective suffering entwine? As the Indigenous Organization
asserts, if it has any meaning, the notion of ‘transition’ is experienced as a kind of
continuity rather than as a break with the past (Neal and Neal 2011; Arbour 2007;
Waldorf 2012; Laplante 2008); continuity revealed in the ways in which difference
and inequality are still woven together into a longue durée that lie beyond the
theoretical contours and the technical mandates defined by and inherent to laws of
national unity.2 In other words, in trying to grasp the multiple dimensions of
violence, collective languages instituted by State-sponsored laws fail, in countries
defined by historical dispossession, to render intelligible the structural dimensions
that are at the root of conflict itself. This specific form of historical injury is
rendered elusive at the very moment of its enunciation into legal language.
The following sections take a look at both the Ley de Justicia y Paz of 2005 in
Colombia and the National Unity and Reconciliation Act of 1995 in South Africa in
order to highlight the ways that these Laws institute official forms of ‘structural
forgetfulness’ as a result of the conceptual architecture and the systems of
classification that they established (Feldman 2004). In both cases, based on the
definition of the term ‘violence’, these laws not only produce ‘official victims’
(‘beneficiaries’ of state-sponsored reparation programs) but also legitimize certain
relationships between the experience of ‘injury’ and ‘time’.
In the case of Colombia, I argue that the 2005 Law attempted to establish a
revisionist redefinition of the terms of reference with which public debates in
Colombia were held over the last few decades. The term ‘violence’ (which ‘located’
culpability, and the beneficiaries of long term exclusion outside the preview and
responsibility of the State) was conceptually inscribed into broader transnational
discourses on terrorism, obscuring the political, colonial-historical, and social
causes of conflict itself, with particular disregard to Indigenous communities. In the
case of South Africa, the text addresses the idea of colonial expropriation and
2
Aside from ‘reparation policies’ aimed at redressing ‘historical wrongs’, such as financial
compensation, official apologies, ‘various models of truth and reconciliation’, and national commem-
orations, one additional way of dealing with historically rooted material inequalities has been through
implementing ‘development programs’ (Duthie 2008; Mani 2008). However, this nexus between
reparations, transitional justice, and ‘world bank development policies’ (that is to say, policies that
promote the ‘expansion of market-based legal reforms’) neither addresses the causes of conflict nor
‘historýs multiple victims’ (Munarriz 2008, p. 431; Miller 2008, p. 268; Nevins 2009). In the context of
Latin America, so-called ‘development agendas’, based on industrialized and extractive mining projects
for example, jeopardize indigenous territories and their livelihood, almost to the verge of extinction in
favour of the interest of multinational corporations. Indigenous communities, particularly those located in
strategic areas, have identified these development programmes that are grounded on the idea of ‘corporate
social responsibility’ and ‘good governance’ as part of a longer history, a continuum of exploitation,
systematic exclusion and ecological destruction intersecting transitional justice and global extractive
Capitalism (Eslava 2008, p. 43).

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historical displacement (the very pillars of Apartheid’s ‘separate development’

theory) that were left out of the general theoretical architecture developed by the
Law of National Unity and Reconciliation of 1995.

Colombia and the Politics of Banishment

The legislation known as the Ley de Justicia y Paz (Justice and Peace Law,
hereafter, the Law) entered into force in 2005. According to the first article of the
Law, its central objective is
To facilitate peace processes and the individual or collective reincorporation
of members of illegal armed groups into civilian life and to guarantee the
rights of the victims to Truth, Justice and Reparation.
The Law continues, making explicit its rather limited mandate as follows:
Illegal armed group refers to a guerrilla or paramilitary group, or a significant
and integral part of such a group [such as] blocs, fronts or other mechanisms
used by [them] (…) This law regulates matters concerning the investigation,
trial, punishment and legal benefits of people linked to these illegal armed
groups either as authors of, or participants in, illegal acts committed during,
and because of, their participation in these groups and who have decided to
demobilize and to contribute unequivocally to national reconciliation.
Law 975 of 2005 has been the legal framework charged with administering the
demobilization of members of the Autodefensas Unidas de Colombia, also known as
paramilitaries (Mejia et al. 2008; Botero 2007; Cepeda y Rojas 2009). The nature of
this process, as well as the final text of the Law, were seriously contested by NGOs and
other national and international human rights organizations since paramilitary groups
were responsible for massive gross violations of human rights. My intention in this
section is not to carry out a thematic or historical overview of the Law’s political
genealogy, but to reflect on the silences installed into it (Comisión Nacional de
Reparación y Reconciliación 2007; Corporación Colectivo de Abogados José Alvear
2007). However, it is important to highlight that the creation of these groups was part
of a larger constellation of events (Romero 2003). In general, paramilitary groups
were organized during the late 1970s and 1980s by powerful landowners as private
armies not only to counter the military influence of the Revolutionary Armed Forces
of Colombia (Fuerzas Armadas Revolucionarias de Colombia FARC) and other
guerrilla groups in strategic regions but also to quell political dissent and broad social
movements (Hylton 2006). At its initial stage they operated as death squads, usually in
collusion with the Colombian military and police, in order to regain control of these
territories. In their origin, some of them presented themselves as anti-subversive,
‘self-defence’, and ‘peasant’ organizations. Although they described themselves as a
political-military organization, paramilitaries were also linked, especially in the
1980s and 1990s, with powerful drug cartels (Cruz 2007; Calvo 2003). The history of
paramilitarism in Colombia should not only be viewed as a counter-insurgency
strategy but also as the history in which multiple groups, linked structurally with local

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and regional political and economic interests for over three decades, terrorized the
country (Velásquez 2007; Cepeda 2006; Giraldo 1996; Rivas 2008).
There have been in general two types of critiques made of the Justice and Peace
Law. One is historical and concerns its origins. The other is procedural. In the first
case, commentators have highlighted at least four critical elements: first, the process
developed out of the assumption of a real separation between the State and
paramilitaries, transforming them into a third force, politically independent within
the conflict, when in fact they were structurally interrelated. Second, the Law is part
of a transitional arrangement that emerges out of the negotiations between the
government and paramilitaries. This process lacked any transparency. The Law
came as pressures from national and international organizations dealing with
victims’ rights became more evident. Third, since the organization is a complex
network of relations and not a homogeneous block, the Law allowed a number of
‘narcos’ (drug barons) to be included under its terms as if they were paramilitaries
(one of the conditions of the Law is that applicants should not be connected to the
drug industry) (Cohen 2001; Reed 2012; Human Rights Watch 2010; Yepes 2008;
Borja-Orozco et al. 2008; Comisión Colombiana de Juristas 2010; Amnistı́a
International 2010). The Law cleansed ‘narcos’ of their illegal deeds.3
Finally, by using certain specific concepts, the Law established a reign of
institutional denial. The refusal of the Uribe government to accept the existence of
an internal armed conflict and the implicit official re-definition of the country’s
historical narrative was a policy engraved on the Law and the procedures it enabled.
The Justice and Peace Law, born in the midst of multiple tensions, was one of the
mechanisms used by the government to ensure a revisionist interpretation of history
where longer temporalities and structural interpretations of the origins of armed
conflict disappeared at least from public debate and government-friendly media
corporations.4 As I mentioned earlier, the Law was the legal mechanism that
allowed for the partial dismantlement of paramilitary groups and for their former
members to submit to a criminal process in exchange for telling the ‘truth’ about

3
The government presented the draft law as an initiative that would enable the ‘dismantling’ of these
armies in exchange for ‘legal benefit’. The Law was an exchange of partial, perpetrator-centred truths for
a large measure of impunity. To obtain these ‘legal benefits’ (such as ‘reduced sentences’) they, first, had
to ‘return’ property they had acquired during the period in which they participated in the ‘criminal
activities’; and second, they had to admit to their criminal acts. By 2008, not only was the reality of
official statistics concerning the demobilization process becoming increasingly questioned (a result of the
continuity between paramilitaries and ‘new’ or so-called ‘emerging criminal bands’ operating in different
regions) but also the legitimacy of the country’s political establishment. In this regard, between 2007 and
2008 the demobilization process took an unexpected turn, as demobilized paramilitaries began to provide
their initial renditions to the authorities with the result that traditional politicians (especially those
associated with the coalitions that supported Uribe Vélez—President between 2002 and 2010—along
with members of the Conservative and Liberal parties) were eventually accused and sentenced for their
collaboration with them.
4
In this regard, the Justice and Peace process failed to investigate in detail the evident links and
complicity that existed between paramilitaries and local politicians and authorities, illustrating the
structural interconnections between the Colombian State (often called ‘the institutional order’) and
‘illegality’ (Corporación Colectivo de Abogados José Albear Restrepo 2009; Yepes 2008).

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what they had done (Cubides 2005, 2006; Romero 2007).5 The Law was meant to
divert attention away from Alvaro Uribe’s critics who demonstrated Uribe’s links
with the creation of some of these groups during previous periods of his political
life. In fact, at the time when the Law was debated in 2004, it was argued that if the
President were simultaneously to advance a policy of negotiation and prosecution,
he could dispel doubts about his direct or indirect links with paramilitary groups.
Much less confrontational than expected was the process that fell under the
responsibility of the National Prosecuting Authority’s Justice and Peace Unit, where
it was handled by one of the 59 Justice and Peace prosecutors (Fiscales de Justicia y
Paz) in charge of corroborating the ‘version’ presented by the individual
paramilitary. For the application of the Justice and Peace Law, not only was it
necessary for a series of procedures to be devised by a broad range of State
institutions, but also regulation of different aspects of the process was also required.
During the first 2 years, more than 200 protocols seeking to standardize the process
were designed. Renditions were given over several sessions, in secluded, in-camera,
non-public hearings called audiencias de versión libre. Only victims and their legal
representatives, along with other officials, were allowed to attend. The hearing was
a ‘collective’ disclosure of ‘illegal acts’ by a commander and his subalterns. In
general, those who spoke had the ‘freedom’ (hence the term libre) to structure their
own declaration or version of events, usually in conjunction with other members of
a particular paramilitary unit. From this process, all details that emerged were
converted into the criminal categories that constituted the foundation of a
formalized, special, public indictment hearing. The information received during
the process did not, by and large, establish any causal relationship between larger
historical processes (systematic expropriation, land theft and the development of
paramilitary economies and a complex set of social relations around beneficiaries)
and concrete crimes (Hristov 2009; Garcı́a-Peña 2005). All this was set against a
background of armed conflict. Upon receiving this information from the National
Prosecuting Authority, all relevant materials to substantiate charges were handed to
Justice and Peace judges during a third hearing (control de garantı́as) led by
prosecutors, each with his own investigative team. Judges reviewed the relevant
documents and files and, if the collection of information and the indictment process
did not affect due process and the constitutional rights of any involved, a final
decision was made (Human Rights Watch 2005).
The point I wish to make is that during Alvaro Uribe’s first administration
(2002–2006), there was a subtle, yet evident change—a prophylactic move towards
a politically aseptic discourse—in the meanings attached to the term ‘violence’ and
the uses to which it was put, particularly among government circles and the mass

5
In terms of procedure, the Justice and Peace Law process has been overly complaisant and light with
perpetrators of crimes, in the sense that their formal testimonies are the main thread of the narrative.
Victims remain in the background. Since it adheres to the procedure of criminal investigations, the
process is slow, with just a few sentences having been passed during the seven years that the Law has
been in force. There has been little in the way of national reconciliation. Worse, in 2008, 26 paramilitary
commanders were extradited to the US on charges of drug trafficking; a unilateral decision (made by the
President) that closed all possibilities of a more systemic truth.

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media. There was a shift from the concept of armed conflict to the idea of armed
groups organized outside of the law. Within the social arena this terminology
(inscribed into the Law) reflected the struggle around different approaches to
government policy, to memory, to criminal responsibility, and to the experience of
victimhood. The term illegal armed groups is a version of history decreed from
above, an act of social administration of the past (almost in a managerial sense) that
not only redefines the nature of the confrontation itself with the use of a new set of
technical-political concepts, but also transforms the historical causality that explains
the present, while displacing specific responsibilities and hiding the identity of the
beneficiaries of a decade-long war. In fact, it hid the larger continuities of violence
that fell beyond the temporalities established by the law. This was a political
fracture in public discourse, a hegemonic transformation of the relationship between
historical time and violence itself. This re-conceptualization of the past, inscribed in
the Law, which should be read in the light of a broader juridical transformation in
the conformation of the ‘enemy’, entails a form of historical revisionism (Calvo
2007; Estrada 2008; Ortiz 2003; Avilés 2006; Perez 2002).
Based on this shift, in Colombia the Law recognizes and legitimizes certain kinds
of victims, certain kinds of inscriptions, intrinsically defining the possibilities of
elaborating a historical narrative. In a sense, the Law acts as a transliterating
mechanism (through the legal process) in which experiences of harm inflicted on the
body and on subjectivity, to the phenomenological social space as a whole, are
translated into a different language. It transmits what I would call a theory of injury
(and by extension a theory of reparation) that speaks to the nature of violence
(literal, structural, chronic or symbolic) that caused suffering. The pain of the other
is passed through the lens of the legal language of the Justice and Peace Law,
rendering it only ambiguously intelligible and legible. In this regard, the Law
defines the contexts of enunciation in which the pain of the other is registered,
‘captured’ or effaced. This ‘capturing’ gesture, through protocols and technologies
of recollection, sets the stage for the circulation of this pain as a collective
experience where definitions of violence embedded in the text of the Law inform the
possibility for historical understanding to be achieved. Through the Law0 s
conceptual architecture collective suffering is assigned a name, rendering certain
kinds of victimhood visible.
There are essentially two instances when the victims may receive official
recognition as ‘victims’, in a legal sense. The first occurs either during the versión
libre, when the paramilitary accepts responsibility for the crimes he has committed
and the damages he has caused or when he incriminates other people. Second, if
such information is not forthcoming, the potential victim may approach the National
Prosecuting Authority (or other institutional instances) and make a statement.
Information will always be registered in the Victims National Registry and assigned
a file number. Finally, if events are not clarified, the commander of the unit may
take responsibility as he was in command in the area during the time of the ‘criminal
act’. The point here is that any kind of reparation (restitution of property, in cases of
clearly demarcated theft through recent displacement), economic indemnity,
psycho-social rehabilitation, and ‘moral’—or ‘symbolic’—compensation) will be
paid (to official victims) once the case has been included in the National Registry of

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Victims.6 In other words, the kind of ‘injury’ suffered by a person or group of

persons will define their nature as ‘victims’, the historicity of collective pain, the
contents of their experiences and testimonies, the framing of their voices and words,
and their insertion into a larger moral community. Let me continue to analyze this
gesture of historicizing the production of victimhood, violence and temporality thus.
The law defines victims in the following way:
for the purposes of the present law a victim is understood to be a person
[including members of the police and armed forces] who, individually or
collectively has suffered direct damage such as temporary or permanent injury
that results in some kind of physical, psychological and/or sensory (visual and/
or auditory) damage, emotional suffering, financial loss or undermining of
fundamental rights. The damage must be the consequence of illegal actions
committed by an organized illegal armed group. (Ley de Justicia y Paz, article
5, amended Ley 1592, 2012, Emphasis added)
Several points emerge from the legislation. The first, of course, is the de-
politicization of the Colombian conflict. The government embedded its own
hegemonic interpretation of national history. Violence begins when illegal groups
were formed. As many observers have pointed out, in principle, the law hinders and
even denies the possibility that, as an organization, the armed forces be considered a
perpetrator of violence (Corporación José Alvear 2009; Movimiento Nacional de
Victimas de Crı́menes de Estado 2009). To reveal this would require a different,
more ambitious historical initiative. Such a possibility would need a more thorough
investigation of the official record concerning the relationship between the army and
paramilitarism. The Law displaces the locus of responsibility, literally scratching
out historical continuities and causalities between political actors and economic
interest groups not only within the temporal mandate of the Law but also beyond. In
other words, it has produced an unprecedented simplification of Colombia’s history.
The result is another sort of effacement, to be added to the real disappearance of
people: the disappearance of crimes committed and organized by members of the
State as members of the State.
Additionally, there are legal responsibilities that are very difficult to pinpoint.
Forced displacement, for example, lies at the root of the war. Expropriation has been
an integral part of the confrontation but also of the history of the country since
conquest. Yet, during the proceedings of the Justice and Peace process, it has been
very difficult to prove a direct link between specific experiences of displacement as
an effect of a direct order. In fact, the manner in which terror has operated in
Colombia (that is, through indirect anonymous threats, random assassinations, and a

6
These are, according to the Law, measures taken to provide reparation to qualifying victims. In
response to the slow progress of the process, the government decided to pass Law 1290 of 2008, which
establishes a mechanism to provide ‘administrative reparations’ allowing financial compensation to be
paid to individuals who have been classified as victims of the illegal armed groups. The problem with this
option is that if a victim accepts compensation no further criminal or any other kind of investigation is
possible. Truth and accountability are two real victims of the law. Up to now, 55,000 victims have applied
and are awaiting a final decision. (Departamento Administrativo para la Prosperidad Social: http://www.
accionsocial.gov.co).

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Historical Injury, Temporality and the Law 55

permanent state of restlessness) obliterates the very possibility of holding anyone

directly responsible for cases of displacement. Members of paramilitary groups
often respond to accusations of this kind by denying that any direct order to force
people out of their homes was given. At the very best, commanders would take
responsibility for what happened or simply explain it away as one of the so-called
‘unintended consequences of war’. Needless to say that historical dispossession is
out of the frame.
The prospect of reparation for more than three million displaced people was, to
put it mildly, uncertain. Larger economic projects behind massive displacements
(which led to an even higher concentration of wealth and land) were not part of the
story. Who, in the end, specifically, is responsible for the displacement of more than
four million uprooted people? Indeed, to reintroduce the question of displacement
(from a historical perspective and around a different concept of ‘violence’) and of
Colombia’s political realities into the agenda would necessarily have produced a
different image of Colombia’s historical process. It would potentially have
reiterated the existence of powerful political blocs linked with national and
international interests, and shown the extent to which land, property, development
and even economic agendas have been at the centre of the consolidation of
monopolies of land grabs, as several commentators have argued, over the last
century or even more (Programa de Naciones Unidas para el Desarrollo 2011;
Pearce 2012, p. 175).
Indigenous people and Afro-Colombians could testify to this historical injustice,
to this chronic expropriation, to this historical injury. When forced displacement is
seen as a systemic phenomenon, interpreted from a longer, temporal perspective, a
node in a network of causalities, the doors are re-opened for a discussion of
historical importance. The systematic forms of legal and illegal expropriation of
indigenous people and Afro-Colombians (beyond the temporal limitations imposed
by Laws) could be viewed in a different light. The movement towards a longue
durée, of course, entails a whole set of new and complex questions about the
definitions of violence and reparation, the nature of injury, the nature of the
financial, political, and the social beneficiaries of violence (Mcbride 2001). This
returns to the quote at the beginning of this text by the elders, to whom society and
the so-called civilizing project owes far more than mere apologies.7
In the context of the Law, two decades of forced displacement will be read as a
consequence of conflicts between factions of different illegal groups, obscuring the
fact that the phenomenon itself was not only a military strategy pursued over more
than three decades, but also part of a more complex project that sought to expropriate
land and concentrate wealth in a largely mafia-driven economy, perpetuating a

7
It seems to me that despite the heated debates and massive outpouring of Constitutional Court decisions
over the last decade around humanitarian assistance to forcefully displaced people, policies of restitution
and reparation and a number of ‘technologies of administration of conflict’ applicable to different
‘collectivities’ (particularly indigenous, Afros-Colombians, women and children), there has been in
Colombia (and very specifically in the context of the Justice and Peace Law, the main concern of this
paper) a very limited discussion, as Rodrigues argues, about the question of reparation for victimization
beyond the temporal contours defined by armed confrontation (see, from a legal perspective, Rodriguez
2010, p. 5).

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systemic monopoly over land. During interviews which I conducted with paramilitary
commanders in early 2011, they recognized the fact that their ‘operations’ (read:
displacement and assassination of alleged guerrillas and their ‘collaborators’) helped
to ‘cleanse’ their region of ‘negative, violent elements’ as well as opening up space for
multinational corporations and petroleum companies, and for large landowners to
return to their activities.8 In fact, they view themselves as agents of progress and job
creation as well as boosters of investor confidence.
During the hearings—even though all parties involved mention armed conflict,
either as an excuse to justify murder (in the case of perpetrators) or as part of the
protocol used by public prosecutors to present information—the investigative
process is interested fundamentally in explaining the conditions under which the
illegal armed groups were formed: when they were organized and by whom; what
their structure of command was at different times, how their activities were
financed, and who their victims were. Because of the Law’s conceptual architecture,
there is no interest in connecting historical elements to make a coherent narrative.
The State in general and its members in the armed forces and the police are
obliterated from the investigation, unless there is concrete evidence to the contrary,
as they are not illegal groups. In this regard, the State is, by definition, not a
perpetrator of violence, but an administrator of law and order. If specific members
of the State are mentioned during the versión libre or the investigation, they are
usually presented as an exception to the rule. The use of the term ‘illegal armed
group’ banishes not only the very idea of internal political conflict, but also channels
the collection of information away from incriminating members of the State and the
systemic nature of various counter-insurgency policies over recent decades (Kelly,
John et al. 2010). It also hides a more structural relationship between paramilitaries
and State officials. The information that is gathered, as well as the parameters for
the collection of information that will eventually make the official archive, is based
on a theoretical architecture that—although able to pinpoint specific ‘events’ and
‘victims’, rendering them beneficiaries of reparation programs—creates a very
particular moral universe. This constitutes part of the history of illegal groups, a
category that not only takes out of the equation broader State responsibility, but also
precludes, in advance, any systematic enquiry into official archives. The State is not
on trial.
In summary, due to the conceptual architecture of the Peace and Justice Law
(ironically hailed as an example of Transitional Justice in the middle of conflict),
structural forms of violence embedded in larger historical temporalities had no
relevance, nor had the social demands from indigenous communities in relation to the
very particular forms of victimization that they had endured. In establishing a specific
relationship between ‘violence’ and ‘temporality’ the Law renders unintelligible
historical injuries. The reason for this invisibility, which I have succinctly presented,
may be the political context in which the Justice and Peace Law was born, where
economic interest, transnational corporate capitalism (in the form of industrial mining
enterprises and large-scale agriculture) relating to concentrated land tenure, and

8
Quoted with permission of the National Prosecution Authority, October 2010, Llanos Orientales,
interview with military commander ‘Alfa’, Autodefensas del Meta y Vichada.

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Historical Injury, Temporality and the Law 57

vested political interests were certainly part of the issue. However, this paper poses a
different question: to what extent do State-sponsored laws of national unity fail to
render intelligible, beyond development paradigms, material inequalities and
historical dispossessions that are at the root of conflict itself? Let me now turn to
South Africa where I take up the same question.

South Africa, The Law, and the Illegibility of the Past

255. The Special Rapporteur [of the UN] is fully convinced that the overall
indigenous problematique today is also ethical in nature. He believes that
humanity has contracted a debt with indigenous peoples because of the
historical misdeeds against them. Consequently, these must be redressed on
the basis of equity and historical justice. He is also very much aware of the
practical impossibility of taking the world back to the situation existing at the
beginning of the encounters between indigenous and non-indigenous peoples
five centuries ago. It is not possible to undo all that has been done (both
positive and negative) in this time-lapse, but this does not negate the ethical
imperative to undo (even at the expense, if need be, of the straitjacket imposed
by the unbending observance of the ‘rule of [non-indigenous] law’) the wrongs
done, both spiritually and materially, to the indigenous peoples. (Martinez
1999, p. 40. Emphasis added).
In this Section I am interested in the conceptual architecture established by the
National Unity and Reconciliation Act of 1995, which gave birth to the South
African Truth and Reconciliation Commission (hereafter, the Act, or the Commis-
sion). Truth Commissions are, in general, mechanisms charged with defining,
gathering, and producing an institutionally legitimated knowledge (Minow 1998;
Nuttal and Coetzee 1998). In a sense, these technologies of transition employ a
series of highly specialized classification, mapping, and information management
mechanisms (Posel and Simpson 2002; Marais 2001; De Gruchy 2002; Meredith
and Rosenberg 1999). Often the process crystallizes in a series of products that not
only contain details of the Commission’s administrative activities, but also gather
broad information regarding the origin and consequences of violence. The terms of
reference used to construct a historical narrative determines how responsibility,
agency, violence and temporality are approached (Bur 2002; Wilson 2004).
In the preface to the Act, the centrality of the search for ‘factual’ clarification was
clearly established from the outset. One of the goals of the Commission, and I quote
extensively,
[I]s to provide for the investigation and the establishment of as complete a
picture as possible of the nature, causes and extent of gross violations of
human rights committed during the period of March 1 1960 to the cut-off date
contemplated in the constitution [May 1994], within or outside the Republic,
emanating from the conflicts of the past, and the fate and whereabouts of the
victims of such violations (…) [I]t is deemed necessary to establish the truth
in relation to past events as well as the motives for and the circumstances in

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58 A. Castillejo-Cuéllar

which gross violations of human rights have occurred (National Unity and
Reconciliation Act of 1995: pg. 1. Emphasis added).
The Commission established a series of mechanisms to provide a ‘complete’
historical picture of apartheid: first, a research and corroboration process, triggered
by victims’ and deponents’ testimonies, and carried out by the Research Unit that
assisted in localizing and mapping certain incidents within the general coordinates
of human rights violations defined by the Commission’s mandate. This mandate not
only identifies specific acts as ‘violations’ (which defined the meaning of ‘violence’)
but, in so doing, also constrained and defined the nature of the Commission’s
endeavour, disconnecting it from lines of causality that might have explained, for
instance, the historical interrelations between apartheid and its recourse to other
forms of less ‘visible’ violence and previous forms of segregation.
Second, much detail came from perpetrators who applied for amnesty: sworn
affidavits, hearings, and in-camera interviews were used to collect information. The
interconnection between these two mechanisms produced the Commission’s
‘findings’ or ‘knowledge’, distilled from a social process of inquiry. However, in
the context of rendering this factual picture to the broader society, in the case of
specific incidents during the apartheid years, the amnesty process played a far more
central role in its production. This process created specialized ‘knowledge’ about
‘the past’, producing cartographies of violence and dislocation and presenting them
in particular ways.
These mechanisms, which coexisted during the Commission’s lifespan, weighed
differently during different stages of its process. The victim-centred testimonial
process central to the first stages of the TRC gave way to the more legalistic, forensic
concept of truth developed by the Amnesty Committee. If, during the process of
knowledge production about ‘the past’, the testimonies helped to give visibility to
certain uses of Apartheid violence, triggering a process of ‘truth recovery’, in the end
the testimonial process had no epistemological weight in the Final Report. Yet, if at
one point testimonies were more concerned with narrative, dignity, and voice, as
many authors have stressed, they were also, even if tangentially, part of the general
process of knowledge production in which specific information was extracted,
organized and interpreted. Both of these mechanisms, which rely on two conceptions
of what constitutes a ‘source’, laid the foundation for the prospect of the restoration
of truth and the production of ‘knowledge’ about the past.
The Act addresses, in this regard, the idea of factual or forensic truth within the
temporal confines of the mandate period (1 March 1960 to 10 May 1994) and
concentrates its effort on establishing a ‘comprehensive account’ of certain kinds of
‘acts’, typified as gross violations of human rights. These violations are also defined by
the Act and are confined basically to ‘(a) killing, abduction, torture, or severe ill-
treatment of any person’, on the one hand and, on the other, to ‘(b) any attempt,
conspiracy, incitement, instigation, command, or procurement to commit an act
referred in paragraph (a)’ and a series of subcategories that emanate from these general
terms that were developed by the Commission’s information and classification system.
For instance, killings might be sub-classified according to the specific procedure—
beating, electric shocks, and so on. For these actions to be classified as gross violations

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of human rights, they had to be performed in the context of the ‘conflicts of the past’
(that is, the mandate period) and be associated with a ‘political objective’.
As I have stressed, the Commission basically counted on two mechanisms to carry
out its mission. On the one hand, it collected ‘evidence’ on the basis of a standardized
process of ‘statement taking’ from deponents. Subsequently, the investigative unit
would corroborate the information gathered in this way. This process essentially
consisted of filling out a ‘protocol’ that would ‘describe’ and ‘capture’ specific kinds
of information on gross violations of human rights: dates, nature of the violation,
names of the victims, a brief summary of the incident, and place. These testimonies
were produced during the statement-taking process when people came forward to call
the Commission’s attention to the killing, abduction or torture of a relative, and were
mainly the responsibility of the Human Rights Violation Committee. Although these
testimonies were also concerned with what was known as ‘narrative truth’, I also
consider them to have been part of a broader goal of the Commission that sought to
unveil ‘factual truth’ regarding the ‘conflicts of the past’.
The ‘protocol’ itself underwent a process of transformation (and technical
‘refinement’ in accordance with certain pragmatic necessities) during different
moments of the Commission’s life (Wilson 2004, p. 33). Initially, in early 1996,
statement-takers, trained specially for the job, were responsible for gathering general
narratives or testimonies from the victims themselves, surviving relatives or other
deponents in connection with past events. These were long, personal and detailed
renderings of the context that surrounded particular incidents. As with any testimony—
and at the time there were few practical constraints regarding its form and content—
these were often complex textures that wove time and space in a fashion that was not
necessarily linear, hovering around minutiae that were not specifically connected, in the
legal sense, to the violation of human rights. At that moment, the Commission was
certainly interested in encouraging this ‘cathartic’ exercise, replicated in the ritualistic
space of public hearings (Bozzolli 1998, p. 167). Testimonies would divert the focus, so
to speak, from the actual incident to other dimensions of experience. Certainly, one of
the problems associated with statement-taking was the fact that the definition of an ‘act’
was so narrow that it could not take into consideration the web of effects that constitute
the life-world of the extended family.
The shifting form of the protocol between mid-1996 and late 1997, designed to
serve the needs of lawyers and analysts, had its consequences. It became a
questionnaire with very specific entries that could easily be handled by the data
analysts. The testimony was to be reduced to its simplest form: a brief summarized
version of the incident. In the words of a ‘data processor’ in Johannesburg, ‘When
we started, it was narrative. We let people tell their story. By the end of 1997, it was
a short questionnaire to direct the interview instead of letting people talk about
themselves. The questionnaire distorted the whole story altogether; it destroyed the
meaning.’ The protocol became an instrument of reduction, a particular technology
that grasped historical causation, interrelatedness, and complexity by fragmenting a
narrative texture into smaller clusters of ‘significant’ or relevant information. By
doing this, ‘acts’ were decontextualized and dehistoricized and treated as discrete,
universal categories. ‘Acts’ of gross violations of human rights, the smallest unit of
analysis, came into existence only as they were inscribed into the classification

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system. Data collection was further narrowed by the analysis of summaries on the
basis of a rigid, controlled vocabulary (Wilson 2004, p. 45; Buur 2002, p. 66). The
emotional character disappeared altogether, and the problem of the person’s
articulation of experience in language became irrelevant. The initial ‘cathartic’
character of this testimonial experience became an exercise in data extraction,
decontextualized and stripped of personal, meaningful detail. The more impersonal
and directed it was, the more useful and ‘legitimate’ as a source of knowledge it
became. ‘Factual truth’ grew out of an aseptic process that would cleanse a
constellation of historical, personal and existential factors of its ‘subjective’ burden.
In a country like South Africa, this particular practice re-inscribed silence at the
very moment the experience was articulated.
In the final analysis, this process implied a series of translations: from the first
‘testimony’, which was framed by the informational necessity of the statement-
taking process, into the ‘findings’, from ‘experience’ into ‘knowledge’. The Final
Report reflected this ‘banishment’, as the information was certainly reduced to basic
factual information. During the process of knowledge production, experiences were
displaced by the Commission’s need to establish ‘facts’. These testimonies were,
however, a fundamental source of its grounding, even if only partially, at the start of
the process. In this regard, as far as this knowledge is concerned, testimonies had a
rather liminal status, simultaneously considered central as well as peripheral, present
and yet absent: the face of the victim blurred in the very scenario of her enunciation.
In this regard, one way to understand the consequences of this process of
translation is to look at the issue of forced displacement in South Africa. Between
the 1950s and 1970s, as part of the project of social engineering conceived by the
theoreticians of total segregation, the Nationalist government removed a great
percentage of the black population into segregated areas, by way of a massive
programme of forced displacement. The so-called Bantustans, homelands, and,
today, townships are territorial marks of this process. The consequences are still felt
today in the dusty neighborhoods and localities that were assigned to literally
relocate Africans. In total, we are talking about millions of people whose lives were
irreversibly fractured and fragmented. These experiences were not taken into
account in the statistical count of violations, nor did its victims become official.
How to explain, then, that the Commission recognized only 22,000 victims of the
violence of Apartheid? The discussions about reparations, in particular among
survivors’ organizations in South Africa, had two complementary registers. On the
one hand, in the context of those who, officially, had the right to them because they
were classified as victims, reparations have been material and symbolic. There is not
much to say about the first of these classifications, only that the government
distributed money (out of State coffers) to each victim or beneficiary. On the other
hand, monuments and memorials were built and a series of rituals performed—from
symbolic burials to naming the streets after the dead—that allowed families and
communities to elaborate their grief, restoring a sense of humanity, dignifying life,
and honouring those who had died during the liberation process.
Of course, this was possible for those who were classified as victims by the
Commission. What about those who had no right to receive reparation? We are
talking about more than two million people who were forcibly relocated and

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distributed because of their skin colour. As I have mentioned, this population does
not enter into official statistics. This fact had two important effects. First of all, it
forced the government to undertake ‘collective reparation’ processes that essentially
meant improving the general infrastructure in the townships. For example, potable
water and electricity were provided. ‘By 2006 the portion of households using
electricity has risen to 81.4 and 71.3 % of households had piped water’ (Johnson
2009, p. 583). For some time, this was read as part of the global process of repairing
‘society’ and healing the wounds of Apartheid; injuries that only time could heal.
However, South Africa’s economic dynamics over the past decade have produced a
new junior black elite in a vast sea of still overwhelming poverty.9 This idea of
collective reparations did not dismantle the economic power relations that even
today define many people’s lives—and perhaps it was not meant to.10 Even though
it is true that the notion of race instituted by Apartheid has lost its legal space, it
remains part of daily life. Terms such as ‘historical redress’, ‘black economic
empowerment’, and ‘poverty reduction’ formed a part of national economic policy
during the Mbeki presidency and were presented as having a ‘collective healing’
component. However, the transition and a particular conception of violence left this
wealth and power almost intact (Bond 2008, 2010; Saul 2010).
A concept of violence that focused purely on physical mistreatment obscured the
systemic dimensions of structural violence—those produced by forced expropria-
tion—and meant that the Commission was unable to recognize that endemic
displacement was a consequence of Apartheid. It was of course mentioned as part of
the historical context, but was never the object of investigation. Had it been otherwise,
those subjected to displacement would have been classified as ‘victims’. For the
Commission, displaced people were not victims as officially defined. The effect of this,
as well as producing a moral hierarchy among victims and of privilege among those
living in poverty, was to remove the complex conflicts associated with the question of
historical expropriation in South Africa from public debate. In other words, given the
restricted definition of violence employed, the Commission left the fundamentals of
Apartheid intact. For many South African citizens, repairing society implied,
precisely, undoing the consequences of the appropriation itself. It is from this mass of
historically dispossessed human beings that the Landless Movement, and all the
initiatives aimed at the violent restitution of land emerged a few years ago: masses of
poor people who want to re-appropriate what belongs to them, even if by violence

9
Except for the large scholarly work on political transitions from communist economies to market-based
ones (Rolland 2012), few authors have ventured into the political economy of these processes (Marais
2001). Part of the failure to address critical issues of poverty and inequality is related both to the
unfinished structural transformations of the colonial and Apartheid past, and to the consequences of
strategic and policy decisions made over the last 15 years during the expansion of global financial
capitalism. See also R.W. Johnson (2009). The question that remains is whether the promises of
transformation were set up to fail, because the structural inequalities—which are at the very origin of
internal conflict—are not part of larger discourses on political transitions.
10
In a recent Guardian Weekly article (‘Tutu’s dreams for Cape Town fade as an undeclared Apartheid
grips the city’, 14.10.11, International News, p. 9), David Smith writes about a recent hunger strike
carried out by Xola Skosana, a pastor of the Way of Life Church in Khayelitsha, in protest against ‘the
treatment of the poor’. He speaks of the dire conditions and the unresolved and ever-postponed issues
inherited from the past (and reinforced in the present) in which millions still live nowadays.

123
62 A. Castillejo-Cuéllar

(Steinberg 2003). Mahmood Mamdani summarizes the situation immediately

following the Truth and Reconciliation Commission process in the following way:
The injustice is not the Apartheid’s injustice: forced displacements, flow laws,
broken families. On the contrary, the definition of injustice has been limited to
the abuses within the legal frame of the Apartheid: detention, torture and
murder. The Apartheid victims are now strongly defined like those victimized
militants in their battle against the Apartheid, and not those whose lives were
mutilated in the regulation net that was the Apartheid. We arrive to a world in
which repair is for militants, those who suffered jail or exile, but not those who
suffered hard labor or whose homes were destroyed. (Mamdani 2002, p. 58)
The Commission emerged from a political compromise. It symbolically sealed a
series of political changes that, in the context of total segregation, were radical. But
it also permitted economic power to be consolidated and made it impossible to
advance a discussion that might have led to more profound changes in society.
These economic and political changes must, of course, be seen in the light of the
prevailing world situation. It sought to investigate some of the legacies of violence
while failing effectively to recognize others. To exclude displacement from the
discussions about reparations (which are in the end, after all, individual) led to the
exclusion of one of the most palpable expressions of how the past lives on in the
present. It is a present that is increasingly questioned by grass roots organizations, as
the rhetoric of an imagined new nation—of reconciliation, forgiveness and truth-
telling as main templates—shows deep cleavages.11 This has led to new forms of
violence. Forms of collective reparation could potentially constitute the cornerstone
of fundamental discussions concerning the origins of the war and the responsibilities
borne by different sections of society. But such a focus would go beyond the realms
of dissent acceptable in what is supposedly a post-conflict or post-violence society.

Towards a Critical Studies Programme of Transitional Scenarios

The ways in which societies have experienced different forms of violence has been
at the forefront of a number of academic and political debates over the last decades.
The idea of ‘transitional justice’ (and the complex network of legal and extra-legal
mechanisms in charge of ‘dealing with’ the causes and effects of human rights
violations) is based on at least two basic assumptions. On the one hand, it is
grounded on the ‘promise’ of an imagined new nation. And secondly, in a
simultaneous turn, it is also grounded on the very possibility of assigning violence
(defined in very particular ways) to a place ‘behind’, in the aseptic reclusion of ‘the
past’. In other words, as societies move ‘forward’, violence is ‘left’ and ‘locked’
behind. In most cases, the notion of ‘transition’, or ‘countries in transition’, assumes
a teleological movement from ‘authoritarian rule’ towards a ‘liberal democracy’,
from the darkness to the ‘light’ of ‘civilization’, axiomatically and unquestionably
11
See for example Abahlali baseMjondolo, The South African shack-dwellers’ movement and the Poor
People’s Alliance at http://www.abahlali.org.

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Historical Injury, Temporality and the Law 63

inserted in today’s global Capitalism.12 In reality, however, the ‘transition

paradigm’ is now applied to many other historical experiences that are not
necessarily described as ‘post-authoritarian’, sometimes not even as post-violence.
Terms such as ‘post-conflict’, ‘post-war’, and ‘post-genocide’ are examples of this
diversity of usages and applications. In these contexts, the global gospel of
forgiveness and reconciliation is part of the discursive framework and assemblages
through which this teleological movement takes place.
Is it possible, however, to think of transitional scenarios as a kind of continuity
with the past rather than the radical rupture in which they are often presented? How
could these continuities be identified and how do they determine the fate of politics in
the present? In the context of this global gospel of forgiveness and reconciliation,
how is chronic hunger ‘healed’? Critiques of the transition paradigm have pointed
out the difficulties in implementing or even imagining the prospect of a (post-
violence) future in contexts where political and economic hegemonies are and
continue to be historically rooted. How can a sustainable peace be accomplished if
the structural causes of internal conflict remain to be resolved? Could this fact be the
seed of future conflicts? As presented in the case of South Africa, it could. From this
perspective, it seems that identifying these tensions, these continuities, is essential;
not only to understand the possibilities of a sustainable peace, but also to grasp how
individuals and broader communities interconnect in the present with larger
historical processes and personal experiences, in an effort to create a future. To
unveil these continuities, as indigenous intellectuals in Canada have said, means to
unveil the colonial heritage, the ‘settler denial’, of transitional mechanisms as they
have been articulated within broader, global legal frameworks (Nagy 2012, p. 349;
Alfred 2009). The project of unpacking these continuities, it seems to me, amounts to
the need of decolonizing, in its immediate materialities, transitional justice theories
and practices. If such a project has any meaning in a complex, multi-disciplinary and
industrially-growing field, it must seek to question the epistemologies through which
knowledge about human fragmentation is produced and to understand certain kinds
of experiences that seem to be layered and situated simultaneously in multiple spaces
and temporalities that question the prospect of a future.
In order to grapple with these questions, the idea of critical studies focuses on the
interplay between expert knowledges, social spaces and particular historical contexts
as a way to problematize global discourses on transitions in which the meanings of

12
This sense of ‘movement’ is reflected in the application of ‘constitutional reforms’, ‘memory
initiatives’, ‘reparation programs’, ‘development projects’, among other technologies of transition.
However, in Colombia, for instance, industrialized agriculture and extractive mining (gold, coal, and
petroleum) and the legal reorganization of rural areas according to private national and multinational
economic interests are presented, by officials, as part of a broader policy of ‘land restitution’ (to the
victims of violence) and the economic basis of a post-conflict Colombia. And yet, it has been the
displacement of peasants and the theft of land (out of the collective hands of rural populations, indigenous
and Afro communities) fostered by paramilitarism and their economic and political beneficiaries that lie
at the centre of the country’s history of internal armed conflict. In many ways, First nations question the
notion of a forward-looking teleology, as their history is the continual struggle against these forces. The
question that remains is how do all these interlocking technologies of transition operate in order to
facilitate the insertion of post-conflict situations into global capitalism, into the conditions that originally
prompted dispossession (Eslava 2008).

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64 A. Castillejo-Cuéllar

‘society’, ‘truth’, ‘justice’, ‘victim’, and ‘reparations’ are mediated, elaborated and
socially contested by communities. In this vein, it is important to study how global
templates are applied (by different kinds of bureaucracies, aid agendas and
geopolitical interests) in different national settings, creating the expectation of a
new nation by implanting the language of reconciliation and forgiveness in societies
still deeply embedded in diverse forms of structural and other forms of violence. The
theoretical architectures of laws of national unity and reconciliation create a
particular relationship between ‘violence’ and ‘temporality’: in trying to grasp the
multiple dimensions of human suffering, the languages established by State-
sponsored laws fail to render intelligible the structural dimensions of violence that are
the root-cause of conflict itself, in countries with long histories of dispossession, at the
very moment of those histories’ enunciation into legal language. This is particularly
important when taking into consideration (if we listen seriously to the statements
made by indigenous leaders) the political and social demands addressed by disposed
pueblos originarios in Colombia and landless organizations in South Africa.
It is the larger, historical situation that the Law fails to address. When social
injuries fall beyond the contours defined by transitional scenarios, the question
emerges regarding the sustainability of peace following internal conflicts. The
question could be posed to the general experiences of Central American countries
where the end of counter-insurgency wars and ethnic genocide does not necessarily
result in a new post-violence nation. As with South Africa, the explanation put
forward by defenders of these transitional arrangements has been macro-economic
disorder, rampant corruption or the ever-unfinished character of transitions.
However, the violence of today is deeply intertwined with the past. In summary,
the idea of regarding concrete transitional processes not as ‘ruptures’ but rather as
relative ‘continuities’, leads to focusing critically on the social spaces (legal,
territorial, productive, etc.) and particular social and cultural contexts as a way to
problematize global discourses on transition. This requires an investigation of how
the idea of a promised future crystalizes, creating the illusion of a new nation.13

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