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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