Monthly Archives: May 2017

ABOUT THE IMPLEMENTATION OF THE COLOMBIAN PEACE AGREEMENT: THE COMMISSION FOR THE ELUCIDATION OF TRUTH

1- Introduction

The peace process in Colombia is at an exciting and challenging stage.

After the signing of the revised Peace Agreement with the FARC-EP (hereby, Final Agreement) in past November and after its ratification by the Parliament,[1] Colombia is currently implementing its provisions and creating the mechanisms envisaged therein.

On 4th April, a Constitutional Law was passed to provide the Comprehensive System for Truth, Justice, Reparation and Non-Repetition envisaged in the Final Agreement with a constitutional framework. Following this, on 5th April, a Presidential Decree established the Commission for the Elucidation of Truth, Coexistence and Non Repetition (hereby, CET or the Commission), which is a key element of that System.

2- Basic features of the Commission for the Elucidation of Truth

The Decree 588/2017 sets out the rules for the creation, composition and functioning of the CET, although most of it is a literal transposition of the chapter 5.1.1. of the Final Agreement where the creation of a Truth Commission was agreed.

The Commission will be an autonomous, non-judicial and temporary body. It will have a three years mandate to perform its task, plus a previous six months period (to be calculated after the election of its commissioners) to organise and prepare its functioning (art. 1).

It shall consist of 11 members, of which no more than 3 can be foreigners. Commissioners shall be nominated, among people who stand for the post, by a Selection Committee consisting of 5 experts nominated by national and international institutions.

Its main goals are: to provide a thorough explication of the armed conflict, to promote the acknowledgement of victims and social coexistence, to contribute to the creation of a transformative environment for reconciliation and consolidation of democracy (art. 2).

Its mandate (art. 11) consists in investigating and clarifying:

  • gross human rights violations and violations of International Humanitarian Law perpetrated during the conflict, with a special focus on massive or systematic violations;
  • the collective responsibilities of both official and non-official actors;
  • the impact of the conflict in different spheres;
  • the historical context of the conflict, its root causes and its development;
  • the phenomenon of paramilitary violence;
  • the forced displacement of people and the plundering;
  • the relationship between the conflict and the drug trafficking;
  • the positive experiences of resilience and transformation in local communities affected by the conflict.

3- Some critical remarks

3.1- Timeframe

It is noteworthy that neither the Final Agreement nor the Decree fix an exact timeframe for this investigation: article 12 of the Decree states that it covers “the conflict”, but without specifying a conventional starting date. Moreover, it allows the Commission to deal with previous historical events, insofar as they help understanding the root causes of the conflict.

This decision allows a wide and complete investigation, but may cause some doubts and debates as to when exactly to fix its starting point.

In addition, the long duration of the conflict and the possibility to take into account even previous events may pose the risk of an overly broad mandate, which could entail difficulties in terms of providing a complete and satisfactory analysis of the conflict. This risk is even more important when considering the relatively short timeframe (3 years) in which the body is expected to conclude its work, as well as the fact that its activity is not limited to collect and examine information, but also encompasses other tasks, such as the creation of public spaces for the promotion of debate and acknowledgment (art. 13.2).

3.2- Transparency and effectiveness guarantees

The rules about the functioning of the CET pay a special attention to transparency and public monitoring of its work. This concern might be seen in the provision according to which the Commission shall adopt its own methodology and make it public (art. 14), in the obligation to inform society at least every six months about its activities (art. 13.11) and in the stress on the implementation of an outreach strategy and its links with mass media (art. 13.8). The Commission shall also adopt measures to create and preserve archives (art. 13.9) and give the widest dissemination of its final report once it is published (art. 13.5).

These provisions provide a guarantee that the activities of the Commission are accessible to victims, civil society and to every stakeholder in the peace process. They also favour a constant monitoring by these actors, thereby granting a stronger legitimacy to the mechanism and its good practices.

Lastly, the decision to create a follow-up committee after the publication of the final report (art. 32) is intended to facilitate the effective implementation of the recommendations that will be formulated in the final report. The creation of such mechanisms in other (few) transitional experiences[2] has proved to be an effective means to prevent the recommendations made by Truth Commissions from being just ink on paper.

3.3- Relevance of and for victims

The Introduction to the Decree and its Article 5 reiterate the idea that victims are a central concern in the peace process, by acknowledging the need to create the CET as soon as possible as a means to grant victims’ right to the truth.

Additionally, the Commission’s activity shall be focused on victims: the Decree states that its tasks encompass “creating… public hearing … with a view to hear different voices, the first being that of victims” (art. 13.2). It is also called to promote orientation to victims and affected communities that take part in the Commission’s activity (art. 13.6) and to develop a strategy enabling an active cooperation with victims’ organisations and their initiatives at the local level.

These provisions, together with the recognition of the positive effect of victims’ proposals for the elaboration of this Decree (as its Introduction states), show the active role that victims should and do have in the development of this transitional mechanism. Besides that, they confirm the will to enhance grass-root initiatives and to integrate them into the institutional transitional project.

3.4- Different venues for different truths

The Decree confirms the separation of the Commission from the judicial branch, as the Final Agreement already affirmed, by stating that the information gathered by this body shall not be sent to judicial authorities in order to charge somebody with a crime or to present evidence,[3] nor shall judicial authorities summon its transmission (art. 4).

In addition, the express focus on collective responsibilities (art. 13.2) and the exclusion of the practice of naming names[4] contribute to separate the object of the Commission’s investigation from judicial procedures.

These provisions prevent the possible infringement of the suspects’ defence rights, including the right not to incriminate oneself, which would be violated if their statements given before the CET were used within a trial. They also prevent the overlapping between the Commission’s activity and judicial investigations, and possible conflicts between them, as happened for instance in the peace process in Sierra Leone.[5]

Lastly, they make it clear that the Colombian transitional project encompasses different venues for different truths: a criminal jurisdiction to ascertain individual criminal responsibility for specific offences, and a Truth Commission for a wider, less constrained and victim-oriented analysis of the violent experience.[6]

4- Conclusion

The thorough design of the CET shows that Colombia has taken advantage of the advice of experts in the field and of the lessons learnt from other Truth Commissions. The wide mandate given to the Commission, the attention paid to transparency, effectiveness, victims’ participation and the separation from judicial investigations are positive features that may contribute to the success of this mechanism.

This forum for knowledge and acknowledgment will probably be a key element for the peace-building process and the reconciliation of the Colombian society.

[1] For an analysis of the peace process and of the main novelties of the Peace Agreement, see my previous post.

[2] The 2000 Truth, Justice and Reconciliation Commission Act in Sierra Leone envisaged the creation of a follow-up committee (art. 18) and the 2005 Truth and Reconciliation Commission Act in Liberia gave the Independent National Human Rights Commission the task to monitor the implementation of the recommendations made by the TRC (Art. X, Section 46).

[3] This does not prevent the Commission from using documents that may be used as documentary evidence in a criminal trial (art. 4).

[4] This option was taken by very few Truth Commissions, such as those of El Salvador and Rwanda. In both cases it posed serious challenges to political stability, besides the problems related to the defence safeguards: P. Hayner, ‘Fifteen Truth Commissions – 1974 to 1994: A Comparative Study’ (1994) 16 HRQ 597, 647 ff.

[5] The contrast between the Special Court of Sierra Leone and the Truth and Reconciliation Commission arose when Hinga Norman, who was standing trial before the former body, asked to give a public declaration before the Commission. The case, which posed significant problems as to the respect of fair trial rights, showed the lack of coordination – and possibly the mutual distrust – between the two institutions. See: M. Nesbitt, M. (2007). ‘Lessons from the Sam Hinga Norman Decision of the Special Court for Sierra Leone: How trials and truth commissions can co-exist’ (2007) 8(10) German Law Journal 977. For a more optimistic view about the relationship between the two institutions, see: W. Schabas, ‘A synergistic relationship: the Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone’ (2004) 15 CLF 3.

[6] On the separation between Truth Commissions and the judicial branch see: M. Freeman, Truth Commissions and Procedural Fairness (CUP 2006) 69 ff.

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Trump’s Travel Bans and Extreme Vetting: How They Violate Basic Human Rights

Caleb Wheeler, PhD Student in International Law, Middlesex University, London

One of Donald Trump’s first actions as president of the United States was to issue an Executive Order banning the citizens of seven Muslim majority countries, Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for a period of 90 days. He justified the ban on the grounds that it would be detrimental to the United States if citizens of those states were permitted to enter the country while a review was being conducted of the existing screening and vetting procedures utilized to determine whether a person should be issued an entry visa. The implementation of the ban was halted by the issuance of temporary restraining orders by multiple federal district courts, and on 9 February, the Ninth Circuit Court of Appeals refused to stay enforcement of those temporary restraining orders. Unperturbed, President Trump issued a second executive order on 6 March in which he sought to ban citizens from six of the seven countries identified in the first ban (having removed Iraq from the original list) from entering the United States. That executive order was also challenged in Court, and federal district courts in Hawai’i and Maryland again prevented its implementation through the issuance of restraining orders. While much of the attention given to the travel bans focuses on the discriminatory effects they have on Muslims from certain countries, considerably less consideration has been given to the types of screening and vetting procedures the administration wishes to impose and the potential effects these new measures would have on the rights of all travelers to the United States. This blog post will demonstrate that policies requiring foreign travelers to reveal private electronic data are impermissible under United States’ domestic law and international law and should be avoided.

 

Both bans are titled ‘Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States’ and have the stated purpose of improving “the screening and vetting protocols and procedures associated with the visa-issuance process”. The goal of these improvements is to identify those individuals seeking to fraudulently enter the United States, and those that support terrorism, violent extremism, acts of violence towards any group of people within the United States or who prevent a risk of causing harm following entry. A number of specific techniques have been suggested to promote the proper identification of individuals falling into these categories, including: in-person interviews, the creation of a database of identity documents and amending application forms so as to better identify fraudulent answers. More general methods have also been proposed involving the development of mechanisms to determine whether applicants are not misrepresenting their identities, whether they may commit, aid or support violent terrorist acts after entering the United States and a catch-all category permitting the government to use “any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility”.

 

It is these latter, more general, categories that cause consternation, particularly in light of recent media reports suggesting that the new screening and vetting requirements could require foreign visitors to reveal their mobile phone contacts, social media passwords and financial data before gaining entry to the country. According to a senior Department of Homeland Security official, the goal of collecting mobile phone contact information is to learn the identities of those individuals who potential visitors are communicating with. Additionally, the secretary of the Department of Homeland Security previously stated that the purpose of demanding that people reveal their passwords is to allow the United States government to “see what they do on the internet.”

 

These proposals raise significant national and international right to privacy concerns. Domestically, the Fourth Amendment of the United States Constitution prohibits the unreasonable search and seizure of a person’s property and requires that search warrants be supported by probable cause. In 2014, the United States Supreme Court held in Riley v California that the police need a warrant to search the information contained on a mobile phone confiscated during a lawful arrest. That decision was based on a finding that mobile phone owners have a privacy interest in the data contained therein that can only be intruded upon through a valid warrant. Recently introduced bills in the Senate and House of Representatives seek to extend the warrant requirement set out in Riley v. California to searches of “electronic equipment and online accounts” occurring at the United States’ borders. The bills specifically state that there is a reasonable expectation of privacy about a persons’ digital content of their electronic information and online accounts and that it is unreasonable under the Fourth Amendment to permit border agents to access electronic equipment without a warrant. The bills do explicitly limit that right to privacy to “United States Persons” as described in 50 U.S. Code § 1801, a designation which encompasses citizens of the United States, lawful aliens with permanent residence and corporations incorporated in the United States. Despite this limitation, the general proposition remains that the right to privacy limits access to information contained on mobile devices. Further, the Fourteenth Amendment of the Constitution entitles non-citizens to equal protection under the law and the Supreme Court has specifically granted non-citizens the right to challenge government actions infringing on rights delineated in the Constitution. Therefore, any measures requiring individuals to produce that information would be unlawful.

 

International law also invalidates any argument that the right to privacy only extends to American citizens and other lawful residents. Article 17 of the International Covenant on Civil and Political Rights (ICCPR, or ‘the Covenant’), which the United States ratified in 1992, explicitly forbids the arbitrary or unlawful interference with an individual’s privacy. When delineating what sort of information States Parties must put in their reports to the Human Rights Committee, interference was described as unlawful when it does not comply with the laws of the State seeking to interfere with an individual’s privacy, and it is arbitrary when it does comply with the State’s laws, but where those laws are not in accord with the provisions, aims and objectives of the Covenant. The Committee goes on to find that interference with the right to privacy must be reasonable under the particular circumstances and should only be authorised to the extent that it is essential to the interests of society that such information is disclosed. This is a high bar to clear, and requires a case-by-case inquiry into each situation. Therefore, even if it could be shown that the information sought is essential to the interests of the United States, that it is reasonable to infringe on the right to privacy and that the right to privacy as it is understood in the United States does not prevent access to the information, a blanket demand that all foreign visitors provide contact, password and financial information will fail as it will not comply with the required fact specific inquiry.

 

In a 2013 resolution, the General Assembly of the United Nations clarified the parameters of the right to privacy as it pertains to digital information. The General Assembly specifically indicated that it was “deeply concerned” about the collection of personal data and its impact on the exercise and enjoyment of civil rights and emphasised that the unlawful or arbitrary collection of personal information is a highly intrusive act that violates the right to privacy. It called upon all states to respect the right to privacy and to establish measures meant to implement their human rights obligations. Although non-binding, this resolution indicates a rejection by the world community of the sort of measures the Trump administration hopes to impose. The General Assembly resolution also requested that the United Nations Commissioner for Human Rights submit a report addressing the right to privacy in the digital age. Although the resulting report primarily focused on information accumulated through mass surveillance programmes, it did clarify that, in addition to the requirements set out by the Human Rights Committee, any limitation on the right to privacy has to comply with other human rights and must not render the right meaningless. Limitations failing to meet these criteria are considered unlawful and/or arbitrary.

 

Therefore, it is important to examine whether limitations to the right to privacy also impact other human rights. In this instance, the proposed new screening and vetting requirements could act as an infringement on the First Amendment right to free speech. The First Amendment prevents the government from abridging the freedom of speech and allows people to make political statements critical of the government without fear of punishment, unless such statements are meant to incite imminent lawless action or constitute a legitimate threat to the president’s life. Knowing that their private statements could be subject to scrutiny by the United States’ government, and possibly act as a barrier to their entry into the country, could prevent individuals from speaking freely out of fear of the possible repercussions. This is particularly true where, as here, a person can enter the United States is left to the discretion of an individual Customs and Border Protection officer, and entry can be denied even if the traveler possesses a valid visa.

 

The ICCPR also forbids the infringement of free speech, although it characterizes it as two rights: the freedom of expression and the freedom of opinion. The freedom of opinion, as set out in Article 19, is not subject to any exception or restriction, meaning the government is not permitted to infringe upon it in any way. By comparison, the freedom of expression, which includes any type of dissemination of ideas, can be limited for national security reasons. Therefore, the proposed screening and vetting cannot limit a person’s ability to hold an opinion but they can limit whether the person can express that opinion. However, the standard for implementing such a restriction is high and they will only be found lawful if they are necessary to protect national security and are not overbroad so as to exceed their protective function.

 

Screening and vetting procedures that require foreign visitors to disclose private digital information raise First Amendment and Fourth Amendment concerns and are of dubious constitutionality. Further, even if these significant Constitutional issues can be overcome, such measures are also impermissible under international law. That is unlikely to act as much of a impediment on President Trump’s attempts to implement these procedures as he has demonstrated hostility towards international human rights law during his presidency. The best hope to avoid this proposed widespread violation of the Constitution is for the Federal Courts to continue to play their important role in upholding the rights of individuals.

*Picture courtesy of usa.gov

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