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University of Amsterdam

Miguel Andrés López Martínez

Dear Diary

Contents
Index of colours and dates..................................................................................................................1
1. The Problem and Research Question: SEE COLOR YELLOW but also GREEN IN THE HAND-
WRITTEN DIARY (Moses’ Journal)...................................................................................................1
2. JUSTIFICATION AND METHOD CONCEPTUALIZATION: SEE BLUE COLOR..........2
3. IDEAS FOR CHAPTERS: COLOR RED..............................................................................3
4. Learning how to conduct research and OTHERS...................................................................4
Some Counter Questions....................................................................................................................4
Some NOTES ALONGSIDE THE WAY..........................................................................................4
2017...................................................................................................................................................4
1. October...................................................................................................................................4
2. November...............................................................................................................................4
4. December...............................................................................................................................4
2018...................................................................................................................................................4
1. JANUARY.............................................................................................................................4
2. February.................................................................................................................................4
3. March.....................................................................................................................................4
4. April........................................................................................................................................4
5. May........................................................................................................................................4
6. June........................................................................................................................................4
List of Contacts...............................................................................................................................4

Index of colours and dates


1. The Problem and Research Question: SEE COLOR YELLOW but also
GREEN IN THE HAND-WRITTEN DIARY (Moses’ Journal)
24-11-17
University of Amsterdam
Miguel Andrés López Martínez
27-11-2017

23-12-2017: D’Argent question

30-1-2018

13-2-2108:

12-2-2018: Scarcity cannot be used as a shield to cover state negligence.


27-2-2018: About the problem of international law around the Tomuschat’s paradox;

27-2-2018: For the chapter 3 (Extra-legal hints into international human rights law)
20-3-2018: For the problem: Actors’ holding the voice of international law.

23-3-2018: The question of different degree of flexibility of ILR regarding the implementation of
treaties and international court’s rulings. See Moses’ Diary on page 344-346 (unfeasible
expectations)

02-4-2018
Graph on the research problem related to the problem of strategic usages of international
law.
18-5-2018. Research question on the role of ILR in filling the gap

2. JUSTIFICATION AND METHOD CONCEPTUALIZATION: SEE BLUE


COLOR

14-12-2017

12-12-2017

5-1-2018
30-1-2018
09-2-2018: about the possibility of making analytical generalizations.
12-2-2018: about the justification of the conceptual delimitation.
University of Amsterdam
Miguel Andrés López Martínez

07-6-2018: From Kai Ambos: Jurists are not revolutionary per se. They tend to preserve the
order through the enforcement of law. Hence, jurists should be critical of law in itself

3. IDEAS FOR CHAPTERS: COLOR RED


13-12-2017

Chapter 2: IHRL on Reparations.

14-5-2018: For chapter 2 on IHRL on reparations. The sources of ambiguity

23-5-2018. For chapter 2. IHRL. The limited message of ambiguity as to flexibility and the CAT’s
interpretation.

08-6-2018. The perception of criminal justice measures as guarantees of non-repetition. From the
Panel: La Situación de Guatemala a Raíz de la Actuación de las Naciones Unidas contra la
Impunidad.

Chapter 3 on IHL on Reparations (Chapter 3 on the new outline)


5-4-2018. For chapter on IHL on Reparations (Zegveld, Liesbeth's lectures week 1)
19-4-2018. For chapter on IHL on Reparations (Zegveld, Liesbeth's lectures week 3)
2-5-2018: For Chapter on IHL on Reparations: it is easy to cross the line between what is lawful
and what is war crime.

03-5-2018. For chapter on IHL: On the different impact of IHL

19-5-2018. For chapter 3: book

29-5-2018. For chapter on IHL on reparations. The interpretation of IHL as a disputed terrain

04-6-2018. For chapter 3 on IHL on Reparations. From Fausto Pocar’s presentation on the
applicability of IHL IN Non-international armed conflicts.
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Miguel Andrés López Martínez

Olasolo: It is a bad idea to apply the IHL criteria for the definition of who is victim in
Colombia since there are persons injured within the context of the conflict without taking
active part on hostilities.

Chapter 1 For the Chapter on Goals of Reparations and Functions of ILR (Chapter 4 in the new
design, according to 25-5-2018 plan): 4-12-2017
6-12-207

21-12-2017. Tomuschat paradox as criteria to select theoretical approaches

30-1-2018. See Merry S.E. (2004) “Colonial and Post-Colonial Law” in Austin Sarat. The
Blackwell Companion to Law and Society. Blackwell Publishing, Malden Massachussets,
pp. 569-588. See UvA library at: Juridische Bibliotheek  Juridische Bibliotheek (184: R.1.SARA )
06-3-2018

19-3-2018: Reference on the political role of international law.

20-3-2018: Reference on the law-making process in Inter-American System.

23-3-2018: The importance of distinguishing between usages and functions.

02-5-2018: The political nature of international law.

19-5-2018. For chapter 4 on goals of reparations: book recommendation

08-6-2018: Ollé Manuel. International law can contribute to framing a common legal framework,
and also by favoring conditions to fertilizing jurisprudence.

Charlotth Back

1. The global south should learn from the north, specially how not to deal with some
problems such as immigration.
2. Global north can also teach the south to pay attention to the other. In other words, the
global north is reeling us how not to ignore to the others.

Ambiguity in law is convenient for those who have the power to say what is the meaning of the
law.

Chapters on Colombia
13-2-2108
For chapter on Colombian Transformative Reparations (Chapter 4 in the Phase III)
University of Amsterdam
Miguel Andrés López Martínez

21-5-2018: method for Colombian Chapter

21-5-2018: context on Colombian case (book recommendation)

22-5-2018. For the chapter on Colombian Transformative Reparations.

04-6-2018. Chapter in Colombian’s reparations and peace agreement. From Albaladejo


Isabel’s presentation. “Situación Actual y Desafíos de la Jurisdicción Especial para la Paz en Colombia” . VIII
SEMANA IBERO-AMERICANA DE LA JUSTICIA INTERNACIONAL 28 MAYO - 8 JUNIO 2018. The challenges and
interactions among the different subsystems within the System of Justice, Truth and
Reparations stemming from the peace agreement with FARC.

04-6-2018. For Chapter on Colombian Reparations. Goals and Limitations of the System of
Justice.

08-6-2018. The perception of criminal justice measures as guarantees of non-repetition.


From the Panel: La Situación de Guatemala a Raíz de la Actuación de las Naciones Unidas
contra la Impunidad.

Doris Rivas: the interrelation between the different systems of law in transitions (justice,
truth and reparations)

For Chapter 5 on Extra-legal hint in Colombia

22-2-2018

17-5-18: For chapter on Colombia: reasons for the restricted use of the truth

8-5-2018. For chapter 5 and 6 on Colombian reparations


From Dialogues with Civil Society #2. Ana María Rodríguez and Daniel Gómez.
CEDLA, University of Amsterdam. (my perspective)
08-6-2018
Charlotth Back (the following is my idea but inspired in what Charlotth mentioned durin her
presentation):

While victims are placed at the center of the discourse on peace and transitions from conflict,
they may be forgotten when it comes to the definition of institutional framework and efforts.

Chapter 7:
6-12-207
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Miguel Andrés López Martínez

4. Learning how to conduct research and OTHERS

17-10-2017

17-1-2018: On how to read sources


21-2-2018: Lessons from UvA Workshops.
30-5-2018: From PhD Workshop. On making explicit some implicit assumptions

Some Counter Questions

1. How will your research directly benefit victims?

2. How could my findings and conclusions be relevant for the international community
of scholars? Why did not you compare Colombian case with others?
21-2-2018: Research Skills B. Week 2. Team Discussion: Bartens, Priscilla; Hommes,
Wiebe; Zoe; Mariana; Christina
-Embed Colombian case in a larger framework or discussion (in the field of transitional
justice for example) from the very outset. Remember: frame it global but keep the eye
local.
-Answer the following question: can my problem be generalized? (not your outcomes or
your conclusions, but your problem. In that sense, look at other distributive justice attempts
–see13-2-2108- )

3. Why did not you analyse International Criminal Law on Reparations?

2-2-2018
We will not be focused on International Criminal Law on reparations (ICLR) because it does not
impose concrete obligations to states, and because I am focused on Colombian domestic law and in
University of Amsterdam
Miguel Andrés López Martínez
this context ICLR has little to say in terms of reparations as ICL plays a subsidiary role mainly
concerned with individual perpetrator.

4. WHAT IS STRATEGIC use of law?

5. WHO USES ILR IN COLOMBIA?

6. Why is it important to study what goals international community has attributed to


the international standard on reparations and its relationship with justice? And to
what extent may be relevant the attempt to establish a relationship between the
answer to this question and the analysis of Colombian reparation programme?

21-2-2018: Research Skills B. Week 2. Team Discussion: Bartens, Priscilla; Hommes,


Wiebe; Zoe; Mariana; Christina
-See how you can embed the Colombian problem in a larger framework or discussion.
-Use other countries as guidelines.
-International Law on Reparations needs not to be fully detailed, so go more into the
practice of ILR.
-Think of normative framework about justice and see whether is coherent with your
problem.

7. How could I neutralize the bias presumption my readers might have by knowing
that the author is Colombian?

21-2-2018: Research Skills B. Week 2. Team Discussion: Bartens, Priscilla; Hommes,


Wiebe; Zoe; Mariana; Christina
-Explain your method to allow others to replicate your findings.
-It is and advantage because you understand the language and have better background
information.
-Write neutrally from the very outset.
-Be very clear about what type of conclusions you want to have.
-Read other non-Colombians scholars about Colombia
University of Amsterdam
Miguel Andrés López Martínez

8. What purpose is behind your conceptual delimitation on reparations?


14-12-2017: From Galligan. D.J. Galligan, Legal Theory and Empirical Research
(Chapter 40) in: Peter Cane & Herbert Kritzer, The Oxford Handbook of Empirical
Legal Research, Oxford: University Press, 2010, pp. 926-950 and 976-1002
Our method in the Chapter 7 (Reparations in Colombia at a crossroad between IL
and Theoretical approaches) can be better put within the category of socio-legal
studies, since the most important part of the research will be focused on the
practical assessment of the implementation of reparations in Colombia, regarding
international law and the theoretical approaches, and we are not discussing about
topics of legal theory. We classified ourselves within the group of researchers who
are intending to deal with the assessment of the way state legal system works in
practice. We have a deeper concern for justice, as we have hypothesized that the
domestic Colombian law on reparations is not advancing its goals.

12-2-2018: The purpose behind the conceptual delimitation is to establish to what extent
ILR is or not flexible and ambiguous. The (more flexible) broader delimitation, that is the
less strict delimitation helps little with addressing the question of flexibility and ambiguity
of law on reparations.
The less delimited the concept, the broader space to think of reparative measures and the
mores necessary flexibility becomes. In other words, if reparations means a wider set of
measures intended to promote very open-meaning purposes, flexibility and broadness end
up being necessary and almost obvious features. So, what I like to do is to prevent biased
judgements of ILR by testing these characteristics within stricter conceptual framework, so
that I can have at the end a more robust (solid? Sound? Plausible?) statement about
flexibility and broadness. On the contrary, if the concept of reparations is nuanced (refined?
Detailed?), then not all the rules and mechanisms will serve to perform its function and to
achieve its goals. In this way, it is possible to attain acceptable levels of certainty about the
contents of ILR and its features.

9. Are uneven reparations flowing from practical constraints at the time of implementation of
international law rather than from the ambiguities of this law?

Some NOTES ALONGSIDE THE WAY

2017
1. October

17-10-2017
University of Amsterdam
Miguel Andrés López Martínez
I have detected some arguments that are not duly developed in texts, where references and detailed
information is more than abundant! (See for example MacCarthy on pages 13 and 14).
26-10-2017
For framing chapter 3: I must contrast contents of reparation in IHRL against Colombian
international obligation to provide reparations. Contrast general legal framework with those
international legal requirements for Colombia.
27-10-2017
Y si para despersonalizarlo un poco digo: “The right to reparations in contexts of scarcity?”

2. November

1-11-17
Key articles of Colombian Law on Amnesty (Ley 1820 de 2016)
Artículo 14: Reparación de víctimas como un principios de la ley
Artículo 41: Deber del Estado de reparar según la ley 1448 de 2011.

6-11-17
Reframing Chapter 3 (Reparations in IHRL)
1. Colombian part in a separate chapter.
2. IHL in the same chapter.
3. When writing about the content of reparations, SEE Basic Principles looking for what has
been purported in prior international law instruments and what has been an original
contribution of the Basic Principles.

8-11-17
From Hesselink and Aleja´s comments: Switch: El derecho internacional de las reparaciones, está
cumpliendo/teniendo el efecto que dice tener? Sirve de guía?
15-11-17
RQ: Define the scope of reparations and be aware of the purpose behind the use of the concept of
reparations

24-11-17
University of Amsterdam
Miguel Andrés López Martínez

1. From Dinah Shelton: “2.5 Conclusions


The remedial task is to convert law into results, to deter violations and restore the moral balance
when wrongs are committed.”. (p. 30).

There lies my problem: how to transfer the contents of international law on reparation to concrete results
in those context where it seems economically and politically impossible. That is: how to convert ILR
into results that legitimize its role at a national level.

2. Even it seems difficult to set a core content of the theoretical approaches…


3. Does the Transformative approach of reparations in Colombia meet the international obligation
to provide reparations? The problem is that such a transformative-oriented approach may lead to
fail in the fulfilment of the international obligation to provide reparations, in the setting of
exhausted resources and little political willing to repair… (in seeking to do the more, it can
result in doing nothing… however, this is not a theoretical or legal discussion, but a more
context-driven one…). The thing is…

4. …That…

4.1. international law on reparations is not devised to substitute any domestic legal framework
but to provide a sort of benchmark (SEE EVANS) that works as a minimum standard of
protection to victims.
4.2. Colombian reparation program, envisaged in the law 1448 of 2011, has conceived
reparations as a transformative measure, which is valid regarding the restricted role that
international law plays in respect of designing institutional measures to render reparations.
4.3. However, the theoretical approach underlying this legal purpose of transformation concedes
that some flexibility in the application of norms enshrining obligations to repair must be
admitted in order that measures can lead to real transformation (SEE UPRIMNY &
SAFFÓN 2009- UPRIMNY & SÁNCHEZ 2010). This entails that some basic principles,
such as that of providing proportional reparation (restitutio in integrum) for instance, have
to be unapplied if it leads to distributive injustices.
4.4. The question now is if such a transformative-oriented approach may lead to fail in the
fulfilment of the international obligation to provide reparations, in the setting of exhausted
resources and little political willing to repair… (in seeking to do the more, it can result in
doing nothing…)
4.5. Although this can be answered from the evidence of the implementation, still is possible to
question if the legal development of the transformative approach of reparations has led to
legal contradictions between domestic and international law on reparations.
4.6. The new question would be: has been fulfilled the international obligation to provide
reparation in the legal implementation of transformative reparations in Colombia?
Our hypothesis is that such implementation has partially met international standards.
4.7. The thing is that we cannot expect from international law more than international
organizations can do.

Could it be thought that the role of international law on reparations neither goes beyond the help to build
domestic legal framework? May we think that international law is not proposed to substitutes national
law on the same field?
(CITE Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post Conflict Societies, S/2004/616,
23 August 2004)

27-11-2017
University of Amsterdam
Miguel Andrés López Martínez
Aleja: In seeking to frame a general discourse and regulation on reparations, so that it can be
generalized as a benchmark, it may result in re-victimization when the victims’ voice is not allowed
to express their real needs and expectations. (The thing is that, at least from the international law
discourse and agenda, the victims’ voice is very important to consider and that one of the purposes
of remedies is not to re-victimize. So, this statement could be useful to support the other way round,
that is, the possibility of re-victimization from the very domestic implementation of transformative
reparations).
However, if would like to answer such questions… I will need to get inputs from the people who is
working directly in the implementation of reparations. SEE, for example, the job done by the team
designed to manage resources and provide compensations (VANIA)

4. December

4-12-2017

From Haasdijk, 1992.


Consider the concept of reparations and its goals as a matter of degree. So GOALS are really
pending on the function attributed to reparations by international law.
See

Sense of reparation (meaning) Chapter


Broadest meaning of Reparations are supposed to Theoretical approaches
reparations serve more general goals (Chapter 1)
Narrower meaning of The definitions of goals is Chapter 3 and 4
reparations pending on what idea one have
about the juridical nature of
reparations (if it is understood
as an obligation or as a right).
BUT… Does it really change
the goal of reparations when
considering more as an state
obligation rather than a
victims’ right?
Strictu sensu meaning
Goals=Particular set of
prioritized remedies (SEE
DINAH SHELTON)

6-12-207
University of Amsterdam
Miguel Andrés López Martínez
FROM VENZKE LECTURE
1. What makes critical your research is to THINK OF LAW AS A PART OF THE
PROBLEM , Instead of thinking of it exclusively as a part of the solution (see lecture’s
diary on pages 128-129).
2. You must first understand the role of law in relation to the goals law is supposed to bring
about. That is, if you want to turn law in the pursuit of laudable goals (promotion of justice
for victims, for example) YOU MUST FIRST UNDERSTAND THE ROLE OF LAW IN
RELATION TO THAT GOAL, because law is hardly ever only a part of the solution; it is
also a part of the problem.
3. How can normative claims come from a critical approach to law? It is possible! If you
ask first who is winning and losing with that law. Ask for how certain views are held,
what are the underlying forces behind those views you take as your research subject.
4. From Koskenniemi (What is Critical Research in International Law? Celebrating
Structuralism. It is necessary to catch the grammar behind the speech of International
Law on Reparations (ILR), meaning by grammar the beliefs and interests behind law-
making processes.
5. From Koskenniemi (What is Critical Research in International Law? Celebrating
Structuralism. BE MODESTLY AMBITIOUS! By uncovering the deep structure of
assumptions about law (ILR) You may get practical sensibility about what is wrong in
ILR, and then try to trigger better research and professional practice.

Idea: what if we try to distinguish between reparations and other transitional measures, namely: criminal
prosecution and truth telling. If we decide to do this, it will be necessary to move the section of conceptual
delimitation (which is now in the section of GOALS) at the beginning of the section of CONTENTS.

12-12-2017

From Sander’s film (The Burden of Peace): What international law can do is contributing to shaping domestic
processes: giving the sense of “Someone is watching us”.

13-12-2017

In the process of design and implementation of reparations in Colombia, International Law on Reparations (ILR)
has provided a set of a. binding rules (treaties and jurisprudence), but also b. non-binding recommendations. Keep
in mind this great bottom-line when drafting the chapter on ILR and Colombia. (SEE SCHEME ON PAGE 323 in
Moses’ Diary)

14-12-2017

From Galligan.D.J. Galligan, Legal Theory and Empirical Research (Chapter 40) in: Peter
Cane & Herbert Kritzer, The Oxford Handbook of Empirical Legal Research, Oxford:
University Press, 2010, pp. 926-950 and 976-1002
University of Amsterdam
Miguel Andrés López Martínez

Our method in the Chapter 7 (Reparations in Colombia at a crossroad between IL and


Theoretical approaches) can be better put within the category of socio-legal studies, since
the most important part of the research will be focused on the practical assessment of the
implementation of reparations in Colombia, regarding international law and the theoretical
approaches, and we are not discussing about topics of legal theory. We classified ourselves
within the group of researchers who are intending to deal with the assessment of the way
state legal system works in practice. We have a deeper concern for justice, as we have
hypothesized that the domestic Colombian law on reparations is not advancing its goals.

21-12-2017
For Chapter on Goals of Reparations: What does it mean Justice when fully reparations are
not possible? Try to use this question when looking for theoretical approaches to
reparations in transitions.
23-12-2017
For shaping the problem: From d’Argent’s review, How must be seen international law? As
necessary common language to solve structural problems? Or as a dangerous illusion?

2018
1. JANUARY

5-1-2018
A new structure is emerging:

Chapter: ihrl and reparations

Chapter: IHL and reparations

Chapter : ILR and Colombia (3.1. IHRL and Colombian domestic law on reparations; 3.2. IHL and Colombian
domestic law on reparations).

Chapter: Theoretical approaches

17-1-2018: On how to read sources


Reading sources is like when you are visiting cities. There are some small towns you
can have a look in half a day, and others you will need weeks for. However, you never
will be walk around every corner unless you stay there forever!
University of Amsterdam
Miguel Andrés López Martínez

30-1-2018
Why am I doing a chapter on IHRL on reparations an another on IHL on
reparations? BACAUSE:

From 2.38. Bassiouni, International Recognition of Victims’


Rights Human Rights Law Review 6:2 _ The Author [2006]. Published by Oxford University Press.All rights reserved. For Permissions, please
email: journals.permissions@oxfordjournals.org doi:10.1093/hrlr/ngl009.

1. It is important to get a clear picture about international law on remedies, because


International law on victims’ redress still remains compartmentalised and gaps and
overlaps between its different branches (IHRL, IHL and ICL) can create uncertainty
about what legal source must be applicable. Moreover, states may avail from this
uncertainty (2.38. Bassiouni, International Recognition of Human Rights, page
206).

30-1-2018
From Mauricio García Villegas. La Eficacia Simbólica del Derecho, 2014, p. 67

Ambiguity is not a problema in itself or a defect of law because general claims make more
likely to agreeing when the parties are so different. In other words, broader language in law
allows to put very opposite subjects under the same umbrella. The problem is that what is
possible to agree with is less likely to be implemented because of the same ambiguity of
language. García takes as an example the Universal Declaration of Human Rights… but…
(see page 67)

30-1-2018 For chapter 1


It might be said the same about the Basic Principles of Reparations because, as Bassiouni
argued, states tried to mitigate their responsibilities being the result a very general content
on remedies. Thus, although general agreement was possible, it costs the inner difficult to
put them into practice.
See Merry S.E. (2004) “Colonial and Post-Colonial Law” in Austin Sarat. The Blackwell
Companion to Law and Society. Blackwell Publishing, Malden Massachussets, pp. 569-
588.

2. February
University of Amsterdam
Miguel Andrés López Martínez
2-2-2018
Research Question: What function has International Law on Reparations performed in shaping domestic legal
system?

Problem: entails two sub-questions.

Sub-question 1: There has been an strategic usage of international law on reparations in shaping transformative
reparations for war victims in Colombia?

Sub-question 2: What function has performed the Colombian law on reparations with transformative approach?

Method: Inquiry into legal frame of reparations but also into the ‘facts behind the law’ ( Zweigert, K., and H.
Kötz. 1998. An Introduction to Comparative Law. Translated by T. Weir. Oxford: Clarendon Press.
Ch 3 32-47)

Outline
Legal Hint
1. IHRL on reparations
2. IHL on reparations

We will not be focused on International Criminal Law on reparations (ICLR) because it does not
impose concrete obligations to states, and because I am focused on Colombian domestic law and in
this context ICLR has little to say in terms of reparations as ICL plays a subsidiary role mainly
concerned with individual perpetrator.
Extra-legal hint (The facts behind the law)

3. Goals of international law on reparations (ILR=IHRLR and IHLR). Looking at hard and
soft-law (Basic Principles).

Colombian legal hint

4. Reparations programs: before Victims´ Law, Victims´ Law, Recent regulation (JEP)

Colombian Extra-legal hint

5. Facts behind the victims´ law and goals (explicit and implicit). See IL´s arguments

BUUUUT: WHAT IS STRATEGIC?


University of Amsterdam
Miguel Andrés López Martínez
WHO USES IL IN COLOMBIA?

09-2-2018

1. How is each case analyzed individually? Are there problems of internal


or external validity in the analysis of the cases?

Both the international legal framework on reparations and Colombian


transformative reparations will be studied in two general stages. In the first,
we will identify the core contents of remedies and their applicability in the
context of non-international armed conflict. The second will be devoted to
untangle the implicit purposes behind the normative formulation of each legal
framework through the study of states´ declarations in shaping international
instruments on reparations and of ones from Colombian administrative and
judicial authorities when undertaking the legal design and implementation of
transformative reparations.

Concerning problems of internal validity, there is a risk of formulating


imprecise inferences about the implicit role and function of law on reparations
that can lead to misunderstanding of states´ declarations and national
authorities’ decisions. The main problem regarding external validity is that the
findings cannot be generalized to other instances, giving the small set of
analyzed cases. However, one might be confident in the possibility of make
‘analytical generalizations’ entailing the description of patterns in the use of
law as tool for political action legitimization.1

12-2-2018

From Ingo’s suggestion in ACIL Luncheon: What is the purpose behind the conceptual
delimitation?
1
Jeroen van der Heijden, ‘Selecting Cases and Inferential Types in Comparative Public Policy Research’ in
Isabelle Engel and Christine Rothmayr (eds), Comparative Policy Studies: Conceptual and Methodological
Challenges. (Palgrave Macmillan 2014) 49 SEE ALSO: Payne, Geoff and Williams, Malcolm (2005) ‘Generalization in
Qualitative Research’, Sociology, 39 (2), 295–314. ‘By starting with more reflection on the end point of the research
process, researchers should be better placed to adapt their research designs, so avoiding excessive
generalizing claims, and engaging actively with expressing their more modest claims in clearer terms’. Payne,
Geoff and Williams, Malcolm (2005) ‘Generalization in Qualitative Research’, Sociology, 39 (2), 295–314.
University of Amsterdam
Miguel Andrés López Martínez
The purpose behind the conceptual delimitation is to establish to what extent ILR is or not flexible
and ambiguous. The (more flexible) broader delimitation, that is the less strict delimitation helps
little with addressing the question of flexibility and ambiguity of law on reparations.
The less delimited the concept, the broader space to think of reparative measures and the mores
necessary flexibility becomes. In other words, if reparations means a wider set of measures intended
to promote very open-meaning purposes, flexibility and broadness end up being necessary and
almost obvious features. So, what I like to do is to prevent biased judgements of ILR by testing
these characteristics within stricter conceptual framework, so that I can have at the end a more
robust (solid? Sound? Plausible?) statement about flexibility and broadness. On the contrary, if the
concept of reparations is nuanced (refined? Detailed?), then not all the rules and mechanisms will
serve to perform its function and to achieve its goals. In this way, it is possible to attain acceptable
levels of certainty about the contents of ILR and its features.

From Frederieke’s suggestion in ACIL Luncheon: What is the relationship between the
conceptual delimitation and Colombian case? Is this a useful distinction for your research on
war victims’ reparations in Colombia?
Yes it is! The reason is that the degree of broadness or precision of the concept can determine the
degree of responsibility. If reparations mean, in the most expanded version, criminal prosecution
and truth-seeking, state may discharge its responsibility by arguing that its authorities have enacted
a bunch of laws regarding transitional criminal justice or truth-telling initiatives that might at most
provide collateral benefits to victims but not a direct remedy, not something beyond their
participation as witnesses in criminal trials or truth commissions. Thus, state might end up being
concerned for criminal justice, without paying major attention to victims and arguing that this is
enough to consider fulfilled its obligation to repair.
From Niki’s presentation
Scarcity cannot be used as a shield to cover state negligence.

13-2-2108
For chapter on Colombian Transformative Reparations (Chapter 4 in the Phase III)
From 2.25. Pages 38-42 (Transitional Justice and ESCR): ESCR have been protected by
judicial orders and administrative programmes seeking to redress the harm suffered in
large-scale violations. However, these reparations seem to be original and autonomous in
the sense of being for provided without considering violations of primary ESCR. In those
cases the secondary right to reparations has a wider scope covering the protection of other
rights different from those that have been breached.
There seems to be growing concern for reparative efforts in which it is intended the
protection of ESCR ( judicial decisions from IACtHR in the case of Plan Sánchez in
Guatemala, and administrative programmes in Chile, Perú, Togo, Morroco)
University of Amsterdam
Miguel Andrés López Martínez

For the outline: It will be necessary to have a chapter 6 on the interplays between ILR
and Colombian law on reparations so that I can compare findings from chapter 3 and
chapter 5.

21-2-2018

Chantal: Think of the idea of justice. Think of the message of your book.
Nik: use the common sense!
Mariana: Be careful with the wording of words. For example, measure will imply to have
an scale to do so. Accordingly, if you cannot measure, think about the possibility of
establish.
From: Social Research Methods Workshop by Gerben Moerman: Comentaries on the
laws of social research methods. UvA, 18 January 2018
1. Don’t use labels! It is better to say to your reader why did you: 1. Collect that data
and 2. Analyse that data, and 3. The way you did.

2. If you use methodological labels, explain why are you falling within them.

3. Try to be modest when your design is case study because you cannot generalize
your findings.

4. In methodologies you DON’T HAVE GOLD RULES, you have


AGREEMENTS between scholar community in terms of how to collect and
analyse data.

5. Describe WHAT you did and HOW instead of labelling your methods.

6. Interview, observation and documental analysis, are data collection instruments and
can be structured, semi-structured or unstructured, depending on what do you need
to know.

7. The more structured your instrument of data collection are, the quicker you can
distil data from them. See:

Data Collection Data Analysis


More (>) Structured (>) Quicker and More (>) Focused
Less (<) Structured More (>) Broad
University of Amsterdam
Miguel Andrés López Martínez

8. In data analysis just show that you make simpler the data.

From: Empirical Legal Studies Workshop. UvA, 29 January 2018

1. You can use quantitative techniques and tools for analysing data looking for
patterns of convergence (as the guys of QCA software have done. See Goanta
Catalina & Mathias Siems’ work on consumers’ law national convergence)

2. When analysing international law decisions, think about politics inside the Court
because the particular political standing of certain judges can affect the final
decision.

From: Comparative Legal Research. Week 2. Odekerk, Marieke. UvA, 13 February


2018

1. Neutral selection criteria make your case selection less biased.


2. When the population is too broad, the case selection will be difficult

From: Research Skills. Week 2. De Broer Nik & Maak, Chantal . UvA, 21 February
2018
1. Make explicit your evaluation criteria.
2. Make explicit your methodological choices and limitations.
3. How to think of research design?
Keep in mind: 1. Your objectives; 2. The type of conclusions you want to come up
with; 3. Justify your choices.

4. From topic to research design:


The path goes: 1. Topic selection; 2. Identification of Problem (and conceptualization);
3. Literature review; 4. Research Question; 5. Research Design AAAND… The cycle
starts again with re-framing of Topic and problem!

22-2-2018
FOR DEAR DIARY:
University of Amsterdam
Miguel Andrés López Martínez

FOR COLOMBIAN CHAPTER5 ON COLOMBIAN EXTRA-LEGAL HINT. 22-2-2018: as


amnesties and immunities can be an obstacle to the effective enjoyment of the right to
reparation against torture and other ill-treatment (SEE 2.34. CAT. general comment no. 3 of
2012 [par 38]) , especially if this violates the principle of non-derogability of the prohibition of
torture and other ill-treatment. SEE CAT. General Comment 2. See also General Comment 3 par
38 and 41), it could be necessary to consider not only those measures intended to directly
implement reparations, but also those legal framework and political measures in the setting of
peace agreement with FARC (and why not with Paramilitaries) that can be conducive to
impede adequate and effective victims' reparations.

27-2-2018

International law has acknowledged the right to reparation and the state’s responsibility to
do so. From international legal instruments, reparation has to be provided in a
comprehensive and proportional way, leading to redress all the harm suffered by victims of
human rights violations. However, there is a sad paradox: “the principle of full reparation
cannot be enforced” in a context of massive violations, so victims “cannot really expect full
compensation”, even when international law avows the right to receive proportional
remedies.2 The first question to address then is why international law on reparations enacts
rules pursuing what seems impossible to attain.
Such question resounds in the process of reparations for war victims in Colombia, where
transformative reparations were designed and implemented in seeking to achieve
distributive justice through remedies that correct both the harm and the unequal social
distribution of burdens and benefits. Although the victims' law enacting transformative
reparations deems to be a measure of serious commitment with victims, the process of
implementation quite on the contrary reveals that this could be an over-ambitious law that
creates unfulfillable expectations. One of the reasons is that the responsible authorities are
more concerned with the financial sustainability of reparations. In this context, international
law on reparations seems to be used as a legal resource of legitimization of domestic legal
devices that explicitly affirm ambitious and desirable purposes but implicitly pursue other
less explicit goals such as legitimization of political action. These issues raise questions
about the purpose, content, and scope of reparations in such a context-related field. In this
regard, this research proposal tries to address the following question: what function has
performed international law on reparations concerning the design and implementation of
transformative reparations for victims of internal armed conflict in Colombia?

27-2-2018

2
Christian Tomuschat, Human Rights: Between Idealism and Realism (Third Edit, Oxford University Press
2014)
University of Amsterdam
Miguel Andrés López Martínez

For the chapter 3 (Extra-legal hints into international human rights law). See the preparative
travaux of each international treaty in respect to the articles that enacted the right to
remedy.

3. March

06-3-2018: Chapter 1 (Chapter 3 in the new design, according to 2-2-2018 plan): Ask for the
FUNCTION law generally performs. See the text of Ferrari: Las Funciones del Derecho.

19-3-2018: See Moses’ diary on page 342. Reference on the political role of international law.

20-3-2018: For the problem: See Moses’ diary on page 343. Actors’ holding the voice of
international law.

20-3-2018: Reference on the law-making process in Inter-American System.

23-3-2018: The question of different degree of flexibility of ILR regarding the implementation of
treaties and international court’s rulings. See Moses’ Diary on page 344-345. To what extent some
international law developments are undermining international law credibility by contributing to
creating unfeasible expectations?

23-3-2018. For the chapter on Goals of Reparations (Chapter 1 and new Chapter 4). It is important
to distinguish between usages and functions of law.

4. April

02-4-2018
Brief graph on the research problem related to the problem of strategic usages of
international law. See Moses’ Diary on page 350

5-4-2018. For chapter on IHL on Reparations (Zegveld, Liesbeth's lectures week 1)


1. The definition of armed conflict (from the lens of a litigant) is given by the ruling
on Tadic's case in the ICTY [Par 70] on the Defence Motion for Interlocutory
Appeal on Jurisdiction (2 October 1995)
2. Protection of Civilian Population: Additional Protocol I art 51
University of Amsterdam
Miguel Andrés López Martínez

3. In IHL there are different categories of persons that determine when an attack is
lawful.
4. States don't like to speak about combatants but if there is no such a concept of
combatant, how can you apply the principle of distinction?
5. 'Sometimes, victims of war cannot have face before the world'.
6. IHL renders obligations to protect BUT NOT rights to be protected. Perhaps you
have to support reparative claims in IHRL BUT IHL does not provide such rights.

18-5-2018. For chapter 5 and 6 on Colombian reparations


From Dialogues with Civil Society #2. Ana María Rodríguez and Daniel Gómez.
CEDLA, University of Amsterdam. (my perspective)

Regarding reparations for war victims in Colombia, there is a contradiction between the
gist of the message delivered by international law and that one from international
politics. On one side, international law says: redress! But on the other side, international
politics is telling states: prosecute drug trafficking! In Colombia, these two messages
turn out to be contradictory because the prosecution of drug trafficking chain entails the
victimization of small planters and peasants involved in the business.

19-4-2018. For chapter on IHL on Reparations (Zegveld, Liesbeth's lectures week 3)


1. Although article 3 of the Convention of the Hague of 1903 envisages that violations
lead to reparations (likewise the case of the Factory of Chorzów from PCIJ), it is not
an individual's right under the IHL system. The use of language in IHL does not
resort to rights but to prohibitions (SEE Article 3 Common to the Geneva
Conventions). However, in Basic Principles there is no distinction between human
rights law or humanitarian law violations. Still it is possible to speak of application
of the concept of reparations as an individual right. For example, in the ICJ's
advisory opinion on the construction of the wall in Israel, the Court recognizes the
obligation to redress for the damage caused. In this case, as the Court was
considering one state, the obligation is held towards the victims but not regarding
other state (Palestina).
2. One of the disadvantages of Mass Claims Commissions is that these can be
politically biased on account of the victor's justice that is driving the provision of
remedies.
University of Amsterdam
Miguel Andrés López Martínez

5. May

2-5-2018

For Chapter on IHL on Reparations: it is easy to cross the line between what is lawful and what is
war crime.

From the Panel on The Siege of Eastern Goutha. Crimes without Accountability. University of
Amsterdam 2 May 2018.

-the use of terms in law determines what is permitted and what not in the setting of armed
conflict. That is the case of the definition of the term besieged area and forced displacement,
which can be deemed as military blockade and strategic transfers, respectively. Therefore, it is
easy to cross the line between what is lawful and what is war crime.

For the Chapter on Goals of Reparations and Functions of ILR: The political nature of international
law. Since International law is made by states and there is clear differences between more and less
powerful states, International law is very political, and the different distribution of power
determines what is the law.

03-5-2018

For chapter on IHL: On the different impact of IHL

From Zegveld’s lecture week 5. IHL has more impact at the inter state level rather than at the
particular international adjudication. The case in point is how principles of IHL underpin the UN
Security Council’s resolutions but not reach significant impact at the lower level (judicial
dimension). This body of law barely reach the preeminent place in the configuration of rationale
leading to the declaration of state’s responsibility and the provision of reparative orders.

14-5-2018: For chapter 2 on IHRL on reparations. The sources of ambiguity

From a Court Case for Syria. Humanity House, The Hague. Perhaps IHRL on reparations is not as
ambiguous as I thought, but simply broad, and the ambiguities just emerge from artificial
distinctions.

17-5-18: For chapter on Colombia: reasons for the restricted use of the truth

From the lecture on War Victims’ Reparations in Colombia. Why the result of Truth Commissions’
job is not used with judicial purposes? Perhaps because if victims knew that their information will
be known in criminal proceedings there would be distortions on account of fear or victims’
aspirations.

18-5-2018. Research question on the role of ILR in filling the gap


University of Amsterdam
Miguel Andrés López Martínez

Why don’t you ask for the role of international law in filling the gap between what is possible and
what is desirable in term of reparations for war victims?

19-5-2018. For chapter 3: book

J. Wouters, Armed Conflicts and the Law.

19-5-2018. For chapter 4 on goals of reparations: book recommendation

See: Out of Ashes. Fourth part on the Robout’s study.

21-5-2018: method for Colombian Chapter

When addressing Colombian chapters you could study the case by answering the same questions
you arose in the first chapters, namely, what (primary rights), what (corresponding obligations),
who (entitlement) and who (responsible).

21-5-2018: context on Colombian case (book recommendation). See in García Villegas, M. La


Eficacia Simbólica del Derecho, pages 146. On the institutional disenfranchisement of social
mobilization.

22-5-2018. For the chapter on Colombian Transformative Reparations.

From Vania’s discussion. See the interrelation between law 1448 and law 1565 how reparations
are deemed as solidarity with regards to return for victims abroad.

23-5-2018. For chapter 2. IHRL. The limited message of ambiguity as to flexibility and the CAT’s
interpretation.

From Christine’s question in the PhD Workshop: on the ambiguity regarding flexibility, when you
are referring to the CAT’s interpretation, keep in mind that this is only a general comment (no 3 of
2012) restricted to the interpretation of the Convention against Torture but not to the entire body
of IHRL.

From Göran comments: avoid the ‘to what extent’ questions.

29-5-2018. For chapter on IHL on reparations. The interpretation of IHL as a disputed terrain
University of Amsterdam
Miguel Andrés López Martínez

Fom the lecture: Controversial Targets. Does Contemporary Targeting Practice Stretch the Concept
of Military Objectives in IHL? Jachec-Neale, Agnieszka (University of Exeter). Asser Institute, The
Hague.

The interpretation of IHL is mediated by politics. The problem is that there is no such a centralized
authority in charge of the interpretation of this law.

30-5-2018: From PhD Workshop. On making explicit some implicit assumptions

1. Make explicit your implicit benchmarks


2. Make explicit your analytical framework. Provide an analytical framework to your enquires
into legal sources.
3. Think of what kind of answers are you looking for.

6. June
4-6-2018. VIII Semana Iberoamericana de la Justicia Internacional. La Haya, 4 to 8 June 2018

04-6-2018. For chapter 3 on IHL on Reparations. From Fausto Pocar’s presentation on the
applicability of IHL IN Non-international armed conflicts.

1.The applicability of IHL does not rely on formal declarations on the end of certain conflict, but on
de facto verification of the conditions. That is, the existence of an armed conflict depends more on
the conditions of high intensity hostilities rather than in declarations of peace and cease of fire.

2. Case Tadić is important because the ICTY stated that the concept of crimes of war applies to
non-international armed conflicts on account of the customary nature of IHL. So, regardless the
special treatment of these conflicts, enshrined in Additional Protocol II, IHL remains as applicable
rule.

04-6-2018. Chapter in Colombian’s reparations and peace agreement. From Albaladejo


Isabel’s presentation. “Situación Actual y Desafíos de la Jurisdicción Especial para la Paz en Colombia” . VIII
SEMANA IBERO-AMERICANA DE LA JUSTICIA INTERNACIONAL 28 MAYO - 8 JUNIO 2018. The challenges and
interactions among the different subsystems within the System of Justice, Truth and
Reparations stemming from the peace agreement with FARC.

1.The definitions of punishment and accountability for combatants has been the focus of the
implementation of the system of justice, truth and reparations although it had laid down that the
main concern was the attention to victims.
University of Amsterdam
Miguel Andrés López Martínez

2.The discussion on participation of victims in criminal proceedings end up being deemed as a


procedural matter. Moreover, the Congress is studying the possibility to exclude indirect victims
from the scope of beneficiaries of the System of Justice.

3.It is a challenge to manage and respond to the Victims’ expectations of Justice, when the
purpose of SJP (Special Justice for Peace) is to select and prioritize the cases to be prosecuted. At
the end, not all the perpetrators will be subject to such special jurisdiction.

4.To ensure the legitimacy of the SJP is another challenge. This can be done through exemplary
rulings, effective mechanisms to follow the accomplishment and to provide financial support to
the system.

5.concerning the complementary role of each sub-system (Justice, Truth and Reparations).
Although these sub systems are envisaged as separated and their institutional and legal
framework are different, there is a complementary relationship among them them. For instance,
the provision of truth is a condition to access to special treatment within the system of justice, and
the results of the Truth Commission’s job can be used as background information in the criminal
investigation of violations. What this reveals is that, first, the sub-system of Truth will deal with
general patterns of victimization rather than particular fact-finding, and second, the system of
justice will be a mechanism to provide truth to victims.

6.the job of the Truth Commission is not redundant with that one of the National Center for
Historical Memory, because this latter is mainly promoted and driven by Colombian state while
the former is deemed as neutral.

04-6-2018. For Chapter on Colombian Reparations. Goals and Limitations of the System of
Justice.
Debate sobre “La Situación en Colombia: El Examen Preliminar de la Fiscalía de la Corte Penal Internacional (2005-
2018) y los Mecanismos de Justicia Transicional” Universidad de la Haya para las Ciencias Aplicadas.
Sala Speakers Corner -Kai Ambos (Alemania). Universidad de Göttingen (Alemania). Magistrado del Tribunal Especial
para Kósovo. Amicus Curiae de la Jurisdicción Especial para la Paz (Colombia) - Héctor Olasolo (España). IIH.
Universidad del Rosario (Colombia). Universidad de La Haya para las Ciencias Aplicadas (Países Bajos) - José Ricardo
de Prada (España). Audiencia Nacional (España). Magistrado del Mecanismos Residual de las Naciones Unidas para los
Tribunales Internacionales; Amicus Curiae de la Jurisdicción Especial para la Paz (Colombia)

Kai Ambos.

1.The legal basis of the SJP is indeterminate (SJP is moving on unstable legal terrain)
because Congress is not making the laws for the system to be implemented and the
Constitutional Court is ruling through press releases but not through sentences. The
tendency is to limit the scope and power of the SJP.

2.Although the process of selection of the judges that will be part of the SJP was guided by
meritocracy, the operation of the system has been trapped within traditional practices of
hiring auxiliary magistrates.
University of Amsterdam
Miguel Andrés López Martínez

3.Criminal systems cannot totally overcome impunity because there are limited capabilities
to attend all the justice claims and prevent crimes. So, the important question is not if it is
possible to prevent impunity, but what kind of impunity results being less dangerous for the
society. Thus, the criminal law must be concerned with the most heinous crimes and avoid
to put everyone in jail.

4. Jurists are not revolutionary per se. They tend to preserve the order through the
enforcement of law. Hence, jurists should be critical of law in itself.

Hector Olasolo

1. The first model of transitional justice used to demobilized paramilitary groups was less
ambitious than that one deemed to get a peace agreement with FARC. Whereas the latter
points out towards important adjustments on the political agenda, the former was more
concerned with bringing accountability.

2. The tendency to weaken initiatives of truth-seeking has featured the recent developments
on criminal law during the implementation of peace agreement with FARC. The less strict
treatment provided to the commanders’ responsibility.

3. The third attempt to advance transitional justice is pursuing to bring not only criminal
justice but also social. However, there is no such a general currency about this goals as
could be seen from the results of the 2016 plebiscite.

4. It is a bad idea to apply the IHL criteria for the definition of who is victim in Colombia
since there are persons injured within the context of the conflict without taking active part
on hostilities.

John Fredy Ibanez

This is a bottom-up process and for this reason it entails serious limitations but also
potentials.

05-6-2018. For Chapter on the Goals of Reparations.

From Rod Rastan Intervention on the Panel“El Impacto de la Declaración Universal de los Derechos Humanos
en su 70 Aniversario: logros y fracasos”

1. We have universal aspirations but fragmented views and ineffective complaints.


2. Legal devices cannot change human nature. Any structure is useless without human action and
commitment. Without human action and commitment institutional structure can do little.
3. Not always law has to have the leading role in transitions. Law is selective. It needs to be selective
and this could render it illegitimate because law is driven by power relationships.
University of Amsterdam
Miguel Andrés López Martínez

08-6-2018. VIII Semana Iberoamericana de la Justicia Internacional. La Haya, 4 to 8 June 2018

For the chapters2 but also on Colombian chapters.

The perception of criminal justice measures as guarantees of non-repetition. From the Panel: La
Situación de Guatemala a Raíz de la Actuación de las Naciones Unidas contra la Impunidad.

Although criminal justice can be deemed as a measure with reparative effect (CITE DE GREIFF
2006) it cannot be denied that the provision of justice contribute to avoiding repetition of
atrocities. So, the penumbra zone of the concept of reparations will be satisfaction and guarantees
of non-repetition. Moreover, to some extent it is not possible to say that there are no reparations
where measures fighting impunity have been undertaken.

Jimena Reyes.

International community attention to transitions gives a sense of solidarity towards victims and
allow to ‘break the solitude’.

From the Panel: La Situación en El Salvador después de la Declaración por la CIDH de la nulidad de
amnistía absoluta e incondicional (1993) y la declaración por la Sala Constitucional de la
inconstitucionalidad de dicha norma.

Doris Rivas:

the interrelation between the different systems of law in transitions (justice, truth and
reparations) can be done through the complementarity between the system of truth and that one
of justice. In other words, the outcome of Truth Commissions May be the starting point for the
Courts to establish priorities and select the cases to be investigated and prosecuted.

Charlotth Back

3. The global south should learn from the north, specially how not to deal with some
problems such as immigration.
4. Global north can also teach the south to pay attention to the other. In other words, the
global north is reeling us how not to ignore to the others.
5. Ambiguity in law is convenient for those who have the power to say what is the meaning
of the law.

(the following is my idea but inspired in what Charlotth mentioned durin her presentation):

While victims are placed at the center of the discourse on peace and transitions from conflict, they
may be forgotten when it comes to the definition of institutional framework and efforts.

Ollé Manuel
University of Amsterdam
Miguel Andrés López Martínez

International law can contribute to framing a common legal framework, and also by favoring
conditions to fertilizing jurisprudence.

List of Contacts

Name Institution E-mail/phone Comments


Albaladejo Isabel COORDINADORA Isabel.albaladejo@undp.or / She has in-deep
DEL FONDO DE phone 357941571 knowledge about
JUSTICIA the system of Justice
TRANSICIONAL. - Truth and
PNUD Reparations
stemming from the
Peace Agreement
with FARC. She will
be working in
Panama as of
January 2019.

Ambos Kai Universidad de Göttingen kambos@gwdg.de He has offered to


(Alemania). Magistrado del
Tribunal Especial para host me in the Max
Kósovo. Planck Institute in
Amicus Curiae de la Gottingen
Jurisdicción Especial para la
Paz (Colombia)
University.

Back Charlotth Universidad Federal She is developing


de Río de Janeiro & charlotthback@gmail.com communitarian
Pablo Olavide. initiatives to settle
Instituto Joaquín an Opinion Tribunal
Herrera Flores in El Salvador. She
will give us
information about
coming events of
critical theory
seminars in Sevilla,
which will take place
in January 2019.

Rodriguez Ana Representante ante anarodriguez@coljuristas.org Ana has relevant


Maria Naciones Unidas de la insights into the
Comisión Colombiana situation of the
de Juristas – CCJ human rights
defenders in
University of Amsterdam
Miguel Andrés López Martínez

Colombia, and has


been working on
litigation before
Inter-American
Court of Human
Rights.

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