For months, CAL has worked on strategies designed to hold corporate actors accountable for their role in the Colombian armed conflict. A conflict that lasted for over five decades, displaced millions of families, and left thousands of casualties. A few months ago, we published this blog which provides background on the Colombian armed conflict and CAL’s multi-layered project developing unique legal strategies to hold corporate actors responsible for their conduct. We have closely witnessed the intricacies and opportunities for the inclusion of corporate actors, known as terceros, in the current transitional justice mechanisms. These so called terceros or third-party actors, are part of a universe of civilians who were not part of the illegal armed groups (left-wing guerrillas and paramilitaries), but still benefited from, exacerbated, or contributed to the armed conflict. In this role, CAL is not only designing strategies and facilitating the spaces necessary to address corporate impunity, but also observing and analyzing the challenges involved in the implementation of accountability measures in a transitional society. A task, we hope, will advance the entire transitional justice field globally.
This post explains the complexities of designing and implementing a framework for addressing the role of corporate actors during the conflict within the transitional justice mechanisms while identifying key opportunities to combat corporate impunity. We start by discussing the technical and political issues involved in addressing corporate accountability within the Truth Commission (CEV, for its Spanish acronym) and the Special Jurisdiction for Peace (JEP, for its Spanish acronym). Here, we explain the issues involved in analyzing the inclusion of corporate actors in the CEV’s final report. We next discuss key current events that increase the urgency of focusing on the issue of corporate accountability in the transitional justice agenda. We place these issues within a framework of emerging strategies that create a comprehensive approach to restorative justice and expand early access to justice for victims of corporate abuse in the Colombian armed conflict context and beyond.
Truth and Justice
The four pillars of transitional justice, truth, justice, reparation and guarantees of non-repetition provide a clear map to analyze strategies that address the role of corporate actors during the armed conflict. In terms of truth and justice, we are embracing emerging opportunities through analytical support and concrete recommendations in the form of comprehensive guidance to the CEV and the JEP. This role has provided a channel to identify key issues necessary to push the agenda for the inclusion of corporate actors in a transitional society.
Truth: The CEV’s final report and the inclusion of corporate actors as a fundamental component of transitional justice
Although the issue of corporate accountability in the context of transitional justice has gained more prominence in recent years, it has been challenging to examine the role of corporate actors during armed conflict. Historically, the majority of final reports left behind by truth commissions address corporate involvement by naming a few corporate actors in the reports. Unfortunately, many of these reports lack a formal analytical and investigative framework that examines in depth the role of individuals or legal entities in conflict. Truth Commissions have evolved in recent years, and more than half of all the commissions created in post-conflict societies included information in their reports that reflect some of the mechanisms used by powerful corporate actors to either finance armed groups or support authoritarian governments by directly participating in the conflict. For example, the Argentinian Truth Commission addresses the role of companies such as Ford Motors in the atrocities committed during the dictatorship.
In the case of Colombia, the CEV’s mandate itself provides a framework to investigate the role of corporate actors in the conflict. As a third generation truth commission, meaning it is a highly evolved transitional mechanism, the CEV is posed to be the most comprehensive and innovative truth commission in history. However, the lack of clarity and concrete guidance on how to approach the issue of corporate inclusion in the final report, coupled with a complicated political environment that seeks to delegitimize the CEV, has created disagreement and a complex debate around this issue: to include or not to include? And if so, how? The CEV will set the stage for future truth commissions in transitional societies, which is why it is important to develop innovative standards that push for the inclusion of economic actors in the development of the CEV’s final report.
This unexplored arena generated several questions and concerns while creating a key opportunity to assess this issue. For months, Dejusticia and CAL worked on a comprehensive document balancing international guidelines, constitutional implications and arguments, evidentiary standards, and the original intent of the Peace Accords upon establishing the CEV’s mandate. This concepto juridico provides a legal analysis while delving deeply into how corporate actors were included in the final reports produced by former truth commissions. The document provides clear guidelines and recommendations that would make it possible for society to discern the role of corporate actors during the conflict. In essence, the legal analysis provided in the document looks at the advances and gaps in previous truth commissions reports from all over the world to clearly identify areas for improvement. Simultaneously, complex issues (such as the right to a good name and reputation, implications on due process, and the examination of the evidence available) are explored in depth while maintaining a balance with the key purpose of these types of transitional mechanisms - the rights of the victims and the integrity of the truth.
Beyond the truth-seeking goals of the CEV, we highlight the significance of the information that is documented in a truth commission’s final report in terms of reconciliation and accountability. After all, this is what civil society will have access to as they confront the realities and challenges of a transitional environment while seeking to understand what happened during the conflict and why. In some cases, the information contained in a truth commission’s final reports can also mobilize civil society to further investigate the role of corporate actors in a particular case. For example, in the case of Brazil and its recent (and unprecedented) agreement with Volkswagen in which they agree to pay compensation to victims for its role during the military dictatorship, it was civil society that spearheaded a civil complaint against the company based on the Brazilian Truth Commission’s final report.
We are hopeful that the CEV’s inclusion of corporate actors in the final report will align with the balancing factors and legal standards provided in our concepto juridico. This unique opportunity in the form of a highly detailed document is now in the hands of the CEV’s commissioners, who will examine it through a series of hearings and discussions before deciding how to address the role of corporate actors in the final report. We expect to publish a finalized version in the next few weeks, along with a blog post to recap its key components. Stay tuned.
Justice: The JEP and the construction of an emblematic standard for corporate actors
In terms of legal accountability for corporate actors, the JEP provides a forum to bring forward cases involving corporate conduct that directly or indirectly led to gross human rights violations during the conflict. However, after extensive constitutional and political debates seeking to exclude corporate actors from the JEP’s jurisdiction, the Colombian Constitutional Court decided to create a path for these terceros only if they voluntarily agree to it or approach it through a formal petition process. Basically, unless corporate actors voluntarily accept the JEP’s jurisdiction, they are not required to be part of the transitional justice process. This was considered a blow, which limited paths seeking corporate accountability.
Two years after this decision, there is only one corporate actor, or tercero, whose voluntary petition seeking the JEP’s jurisdiction has reached an advanced stage of the process. Jaime Blanco Maya, was previously convicted for the homicide of two union leaders and investigated for his role in a financial scheme involving Drummond, a coal-producing company domiciled in the United States, which directly financed deadly paramilitary groups. Other petitions remain in the early stages of the process before becoming official JEP cases. To obtain the benefits of the JEP’s jurisdiction, these terceros must include a plan or commitment (Compromiso Claro, Concreto y Programado, in Spanish) providing a preliminary plan with proposed activities that contribute towards victims’ reparations. This plan must be reviewed and accepted by the victims before the JEP approves the continuation of the process.
To date, the JEP has not established an enforceable standard that encompasses restorative and truth-telling activities. In fact, the discrepancies in the different plans proposed by a variety of terceros (including former politicians and Colombian military) has now increased the need to create a standard – centered on corporate actors – in which its restorative measures are truly transformative. We are now focusing on this opportunity and our ability to develop the tools necessary to contribute towards the development of this standard in collaboration with partner organizations in Colombia. CAL is following these cases closely and working strategically to promote victim participation in the process. We believe that early and inclusive victim participation in the process will create a comprehensive approach to restorative justice. As such, we are creating spaces for relevant parties to come together and visualize a comprehensive and representative standard from a victim’s lens.
Financing the Conflict - Key paramilitary actors and the missing piece of the truth puzzle
The current political environment and the challenges faced by the transitional justice mechanisms with regards to the inclusion of corporate actors in its agenda, has now been exacerbated by recent developments involving paramilitary actors. Two former paramilitary members, Rodrigo Tovar Pupo (known for his alias “Jorge 40”) and Salvatore Mancuso, are seeking to benefit from the JEP’s jurisdiction as terceros who financed the conflict. Both recently came back from the United States after being extradited and completing their sentences in U.S. jails for crimes, including drug-trafficking.
Now that Jorge 40 and Mancuso are back in Colombia, a new chapter in the truth-seeking process has begun. After all, their premature extradition to the U.S. created a gap in the transitional process by not including the testimonies of key paramilitary commanders. Paramilitaries, as right-winged illegal armed groups that were closely connected to powerful corporate actors and official government representatives, have key information that could shed light about the participation of multinationals in the conflict. Such information implicates individuals and legal entities or multinationals like Chiquita Brands (yes, the banana company) and Drummond.
These controversial cases and the return of Jorge 40 and Mancuso to Colombia have now opened an unexplored space for corporate accountability, where those who directly participated in the schemes used by corporate actors to finance the conflict could finally contribute to the transitional environment. In the past, most of the testimonies involving paramilitaries and corporate actors, from a prior transitional mechanism known as Justicia y Paz, remain in the hands of the Colombian District Attorney’s office as uninvestigated files known as compulsas. The road ahead for these former paramilitary members is quite long. The JEP is still reviewing these cases and to date, it is unclear what to expect. However, these actors are now beginning to participate in truth-telling spaces organized by the CEV. These early signs of cooperation will hopefully create scenarios and opportunities where victims, corporate actors, and perpetrators can come together to interact with those directly and indirectly harmed by corporate complicity or participation in human rights abuses.
A map towards reconciliation and restorative justice for victims
In this environment, CAL is paying close attention to these different scenarios while creating meaningful strategies for corporate accountability. Pushing the agenda for the inclusion of economic actors in the CEV and the JEP exposed the complex technical and political issues involved in this arena, but at the same time provided unexplored opportunities to focus on as part of our victim-centered approach and the development of strategies for early victim inclusion in these processes. We are doing this while developing parallel strategies and spaces where organizations, civil society, and victims can come together to explore and replicate promising restorative models and legal strategies in Colombia, and beyond.
This month, and in collaboration with our Colombian partners and the African Coalition for Corporate Accountability, we officially launched the global component of this project - the Corporate Liability and Sustainable Peace Lab (CLASP LAB),-- a space where legal practitioners and communities affected by corporate conduct will strategically explore the issue of corporate liability in the context of transitional justice. We are incredibly excited to follow the development of the CLASP Lab in the next year. We are confident that a multi-faceted approach in which we examine civil liability, restorative justice, transitional justice mechanisms, and the role of individuals and legal entities during armed conflict will provide a comprehensive approach with transformative components towards a sustainable peace.
Tatiana Devia is a Staff Attorney at Corporate Accountability Lab.
