2001 Franc Gutierrez
2001 Franc Gutierrez
2001 Franc Gutierrez
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Latin American Perspectives
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The Courtroom and the Bivouac
The law, its discursive routines, and its representations play a central r
in Colombian public life. For many social actors, including armed groups,
their statements to their victims and adversaries and to significant third pa
ties about the motives and meanings of their violent actions, legalistic la
guage has become the primary and sometimes the only way of expressin
their demands and public justifications. "We give you five working days [di
habiles] to leave" (Molano, 1996): in this peremptory order from a parami
tary group to a community on the Atlantic Coast, the voice of the paid assa
sin merges with the voice of the notary. In a similarly surprising inflection
Rauil Reyes, a spokesman for the Fuerzas Armadas Revolucionarias
Colombia (Revolutionary Armed Forces of Colombia-FARC), declar
that he would under no circumstances come to a negotiating table whe
paramilitaries were present because they were "a group at the margin of
law." For its part, an "anticommunist organization" linked to drug trafficki
ended its communiques with the stirring phrase "To be read, communicat
and carried out" (Lease, comuniquese y cumplase) (Torres, 1995: 139).
These manifestations offer clues for the analysis of law and violence
Duranti (1997) has spoken of "culture as knowledge," and from this persp
tive, the study of a cultural complex requires, above all, the teasing-out of
rules: of definition, procedure (knowing how), and orientation (knowing h
to find the resources for resolving how).' The rules are mental maps th
Francisco Gutierrez Sanin is an associate professor in the Institute of Political Studies and In
national Relations of the National University of Colombia. This essay presents the results of
Justice and Oligopoly of Arms Project, co-financed by Colciencias. The author thanks C6sa
Rocha for his contributions and the anonymous LAP readers for valuable suggestions that w
incorporated into the final version of this article. Of course, the ideas expressed here are his ow
responsibility. The epigraph was supplied by Pablo Tatay.
LATIN AMERICAN PERSPECTIVES, Issue 116, Vol. 28 No. 1, January 2001 56-72
? 2001 Latin American Perspectives
56
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Gutierrez Sanin / THE COURTROOM AND THE BIVOUAC 57
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Guti6rrez Sanin / THE COURTROOM AND THE BIVOUAC 59
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60 LATIN AMERICAN PERSPECTIVES
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Gutierrez Sanin / THE COURTROOM AND THE BIVOUAC 61
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62 LATIN AMERICAN PERSPECTIVES
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Gutierrez Sanin / THE COURTROOM AND THE BIVOUAC 63
for daring to point out the passive role of the army and, on occasion, their
approving silence" (Cuartas, 1998). It is clear that the Puerto Asis case is not
an "isolated incident" (still another fundamental clich6 of Colombian officia
discourse of the past few years for explaining crimes and human rights viola-
tions by agents of the state) but part of a very extensive strategy or at least
vision.
How are we to explain the dazzling legalism of Colombia's armed actors?
It cannot be attributed to a massive degradation that has put everyone in th
same condition.7 For instance, the "trials" held by the guerrillas, at least in
some of their territories, are terribly asymmetrical, arbitrary, and unfair, but
they are not summary: sometimes local residents and even guerrilla foot-sol
diers come to the defense of a suspect that the commanders want to execut
(various reports; see also Zambrano, 1990). This is not the case with the
paramilitaries, whose desire to "remove the water from the fishbowl" calls for
constant pressure on the population in the form of massacres and massive
intimidation; to put it another way, their strategic necessities impose a sum
mary justice and intensely terroristic practices on both factual and symboli
fronts. For example, an internal disciplinary publication of the Autodefensa
Campesinas approvingly cites the following historical precedents: "Genghis
Khan used rumors about the ferocity of his men and the force of their weap-
ons to terrorize the enemy. In the Second World War, Nazi propaganda
created the myth of the German Superman and of the invincibility of his
army, thereby facilitating the invasion of Poland and the Low Countries
through the demoralization it caused" (Autodefensas Unidas de C6rdoba y
Uraba, 1996?: 2).
But, as we have seen, this does not stop the paramilitaries from engaging
in wide-ranging and high-profile judicial activism that has ended up includ-
ing international humanitarian law and is reflected in their internal operation
by a careful and sometimes grotesque adherence to rules. Nor can we attrib
ute this legalism solely to the desire to "keep up appearances" to the popula
tion or to exhibit an executive efficiency that they really do not have. As we
have seen in the Puerto Asis and Apartado cases, the pragmatics of juridica
discourse are much more complex.
I would suggest, on the contrary, that the juridical problem is one of the
hinges that articulate "order and violence," to use the expression of Pecaut
(1987), in at least the three fundamental domains of regulation (institutiona
construction and development of broad modernizing projects), exclusion
(maintaining the "dangerous classes" at arm's length through relatively inac
cessible performance techniques and a show of hierarchy, asymmetry, and
majesty), and war (leaving open the possibility that adversaries competing
for partial territorial domination might find a common semantic terrain fo
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64 LATIN AMERICAN PERSPECTIVES
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Gutierrez Sanin / THE COURTROOM AND THE BIVOUAC 65
The correlate of the legalism of armed actors is the quest for rec
and rights through extortion and "arm-twisting" directed at the legal
tus of the state in general and at magistrates and judges in particular.
should not be deceived: this armed extortionist hopes to obtain "full
cal" decisions and judgments, on stamped paper, duly notarized. He
in the business of his victim.
In effect, one of the most sought-after goals of those who become "danger-
ous" is to be considered an interlocutor, under equal conditions, with the
authors of the law, a law that is aggressively asymmetrical (and even autistic)
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66 LATIN AMERICAN PERSPECTIVES
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Guti6rrez Sanin / THE COURTROOM AND THE BIVOUAC 67
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68 LATIN AMERICAN PERSPECTIVES
CONCLUSION
The law is a farce; the law tells all (even more, it is life or death)
ble conviction is expressed in the convergence of aphorisms such
withstands all" (a document can say anything, but real life is quite
with the conviction, based on long historical experience, that de
are not juridically encoded do not exist. To put it in the terms intr
lier, there is a disjunction between the "knowing what" and the
how/knowing where." It is ostentatiously pointed out that the ca
the world are not those of the law, but, guided by strategic consider
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Gutidrrez Sanin / THE COURTROOM AND THE BIVOUAC 69
shown with equal ostentation that the categories of the world are trans
to those of the law for one's own convenience.
Perhaps what best symbolizes this assembly of ambiguities is the
Bolivarian enthusiasm of all Colombian armed groups-I have not found a
single exception, and any exceptions would be marginal-from the 1980s to
this day. The military left, the state's armed forces, the popular militias (some
of which even call themselves Bolivarian), the praetorian guards of drug traf-
fickers, and the paramilitary groups all explicitly define their identities with
relation to a Bolivarian ethos (as opposed to any Bolivarian theory or ideol-
ogy). This is a curious, possibly unique intersection in a low-intensity war
that has been characterized by its cruelty and its diffusion. It doubtless con-
tains elements of a return to the founding fathers of Colombian nationality, in
addition to purely agitational elements. Above all, however, Simon Bolivar is
the icon of a truncated rebellion against petty legalism and of the proclaimed
superiority of the warrior over the lawyer-a discursive motif that at its apo-
gee was the exclusive patrimony of conservative forces and that has fed a
good part of Colombia's great debates and civil wars throughout history. But
the Bolivar recovered for the late twentieth century inevitably wears the toga:
he denigrates the law but accepts it as the only language that permits simulta-
neous action with respect to the logics of regulation, exclusion/incorporation,
and war. He does so unhappily, and for new reasons: for instance, the use of
law is an effective method for signaling distance from the "pariah capitalists"
and informality and for demanding impunity "just for me." The social tech-
niques of jurisprudence offer methodological tools that permit the effective
construction of dangerousness, but this generates a new, more powerful sort
of petty legalism, built on the interweaving of armed extortion and judicial
technique. Insofar as this process is simultaneous with the aggressive
illegalization of thousands of persons (illegal peasantry, illegal city) to
advance projects of modernization and normative universalism, extortion
offers an economy of signs in which unarmed actors can find both ostensible
examples of injustice and keys for the naming of the demands for incorpora-
tion: a resource but also a trap.
Legality finds itself at the core of this tragic equilibrium as an icon of its
solidity and of its labyrinthine spirit. It is the universal tool par excellence
precisely because its ostensible porousness supplies the discursive resources
that permit one to face the adversary with efficacy (but an efficacy that is not
principally "juridical"). It is the weapon for denouncing the "formality/infor-
mality" dynamic and for making use of it. It is the soul of the orangutan in a
frock coat: the language that subtly and paradoxically but very effectively
links the courtroom and the bivouac.
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70 LATIN AMERICAN PERSPECTIVES
NOTES
1. Duranti refers only to the first two categories; I have added the third because I cons
indispensable for the discussion that follows.
2. Guerrillas, according to the Maoist postulate, are supposed to move among the po
"like a fish in water." Draining the water therefore means provoking a massive exodus fro
tories dominated by the guerrillas.
3. In a survey conducted in October 1997 and coordinated by the justice group of the In
de Estudios Politicos y Relaciones Internacionales, 93 percent of those polled "agr
"totally agreed" with the phrase "In Colombia anything can happen, however incredi
that the phrase was made especially strong, which should have reduced the number of
agreement). The same survey found high levels of fear and uncertainty among Colom
4. Thus the precise term would be "percolation" rather than "fragmentation."
5. It should be noted that the mayor also confronted and publicly criticized guerrilla ac
in the region.
6. One of them, Juan Carlos Esguerra (later Colombian ambassador in Washingt
jurist of the highest caliber. One of his most important acts as minister was to propose
state pay the legal costs of military personnel accused of human rights violations.
7. This is a very popular thesis in Colombia, especially among journalists who have t
age to make important accusations, but I suspect that this is a case of "adaptive preference
tion": since those who do not adhere to the notion of millimetric symmetry between t
actors can easily be accused of collaborating with one of them, it is best to accept th
preventively.
8. Translator's note: The Uni6n Patri6tica, a political party allied with the Fuerzas Armadas
Revolucionarias de Colombia (Revolutionary Armed Forces of Colombia-FARC), was created
during the short-lived truce between the FARC and the government of Belisario Betancur in
1984; the party outlived the truce, but its members (including two presidential candidates) were
subjected to a ruthless extermination campaign that the government consistently blamed on
narcoterrorist organizations despite evidence of military participation in many cases.
9. Los Extraditables carried out a selective terror against what we might call "official Colom-
bia." For example, they made every effort to avoid a confrontation with the Catholic Church (as
they point out in a communique [Los Extradibles, 1990f]) and with the army. They focused their
attacks on politicians, judges, and the police, thus following a long Colombian tradition, both
armed and unarmed.
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Guti6rrez Sanin / THE COURTROOM AND THE BIVOUAC 71
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72 LATIN AMERICAN PERSPECTIVES
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