In recent weeks there have been two interesting development in the movement to demand responsibility from economic actors that support serious human rights violations in contexts of conflict and repression, such as the case of Chiquita Brands’ support to Colombian paramilitaries, or Argentinean companies that financed and supported the military regime.
The first development is the Argentinean Parliament’s decision to create an “investigatory commission regarding the complicity of economic groups’ complicity with the former civil military dictatorship” in that country.
The second is the announcement of a future “Commission for the Clarification of Truth, Coexistence and Non-Repetition” in Colombia, to be implemented once the peace process between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrilla group. Among other tasks, the Commission will have within its mandate the duty to promote the recognition of:
- Responsibility of those who participated in the conflict not only in a direct, but also in an indirect way
- Factors and conditions that facilitated or contributed to the persistence of the conflict
- The phenomenon of paramilitarism, in particular its causes, origins, and manifestations; its organization and the different ways of collaboration with it, including its financing
These announcements are good news, as the struggle for accountability of those who have committed or helped commit serious crimes during times of repression or conflict has been long and difficult.
- In a few cases, societies that suffered from violence have managed to undertake serious processes of clarification of the truth, recognition of victims, and the trial of those responsible.
- And, in the vast majority of these, the processes of accountability have reached the direct perpetrators, but very few have managed to include those who planned, directed, and especially, those who financed or benefited economically from these crimes.
These two initiatives, in spite of stemming from very distinct contexts, have come together across time, do well at this point in time. First, the question of economic responsibility (and particularly that of businesses) continues to be an unexplored area in specialized academic discussion.
Second, although some past truth commissions have sought to confront the issue (a recent study from the University of Oxford found that at least 11 Commissions had attempted it), the lessons are varied and the results obtained in these experiences have been criticized.
Third, these discussions, and the mechanism of truth commissions, breathe fresh air into the experiences of strategic litigation in various parts of the world, but which have also had mixed results, and whose opportunities for advancement have been reduced recently, as has occurred with civil litigation in the United States with the Alien Tort Statute (ATS), a law that allows foreigners to file civil suits in U.S. federal courts for violations of international common law. In recent years, the U.S. Supreme Court has been limiting the reach of the ATS, in particular with respect to corporations. Foreign countries can no longer be sued under the ATS, and North American countries must have strong ties between their domestic activities and their human rights violations abroad.
The above initiatives are surrounded by both opportunities and challenges. In the case of Argentina, the initiative is accompanied by a long process of judicialization of crimes against humanity and litigation against some companies that supported the violence. Recently, an exhaustive study was publish that investigated more cases of business responsibility and crimes against humanity. But it also confronts challenges derived from the current political transition and the possible impact that this may have on transitional justice initiatives. Additionally, as a parliamentary commission, it faces the challenge of structuring itself in a technical, independent way, and responding to a mandate that it must fulfill in a very limited time-frame.
The Colombian context is very distinct. The negotiation process of a peace agreement has yet to be finalized, and therefore, the transition has not yet occurred. The clarification process includes a very large timeframe (more than five decades of conflict) and the agenda of responsibility of economic actors competes in importance and time with others (such as the responsibility of combatants, the State, politicians, among others). In contrast to Argentina, the truth commission mechanism is also new in the Colombian experience and must be carried out parallel to other processes, such as justice, which a specialized and exceptional tribunal will carry out.
2016 will then be an important year to see how these two Latin American experiences can be consolidated as innovative and effective initiatives that contribute to the discussion about justice mechanisms.
*Nelson Camilo Sánchez is a researcher in the Center for the Study of Law, Justice and Society (Dejusticia).
Featured photo: U.S. soldiers in a poppy field in Afghanistan, the main ingredient for the production of heroin. Source: Flickr Creative Commons via U.S. Marines.