Will Private Businesses Be Prosecuted In The “Post Conflict” Period?

(Translated by Eunice Gibson, CSN Volunteer Translator)

Source: http://www.razonpublica.com/index.php/economia-y-sociedad/9591-%C2%BFlas-empresas-privadas-ser%C3%A1n-juzgadas-en-el-posconflicto.html

By Juan David Velasco*

Monday, July 18, 2016

The crimes of financing or supporting armed groups will be investigated by the transitional justice system during the “Post-Conflict”.  How will this process be carried out and what are the implications for companies and for the Colombian business community?

This is a case that is unique in the world

A recent decision of the Bogotá Superior Court found that the Postobón Company has financed paramilitary groups.  It proposed that the company be charged as a legal person and that it make use of some of its property to make reparations to the victims.  This decision opened the debate on the reach and the limits of transitional justice in relation to the companies that allegedly participated directly in the armed conflict.

Paragraph 32 of Section 5 of the proposed agreement on transitional justice between the government and the FARC states that “the special jurisdiction for peace will be competent to consider the acts of financing or collaborating with the paramilitary groups, if those acts were not caused by duress”.  When the final agreement is signed, this will be the first time in the history of Colombia that those who sponsor irregular armed groups must assume some kind of responsibility before a special judicial tribunal, as part of a transitional justice system.

It’s worth remembering that Statute 975 of 2005 and the amendments contained in Statute 1592 of 2012 and Executive Order 3011 of 2013 do not provide authority to the Peace and Justice Branches to try anyone except demobilized paramilitaries and guerrillas.  That means that those Branches have no authority to try civilians who funded the armed conflict.  They may only require copies of the Attorney General’s documents to carry out investigations, and if they find evidence, they may file charges in the regular judicial system.

Colombia might be a landmark case in the prosecution of business leaders.

There might well be a considerable number of businesses and business owners that have committed the crimes of financing or sponsoring illegal armed groups in Colombia.  By way of illustration, and which might be interesting to readers, there is attached to this article an itemized list of businesses and business owners who have been mentioned in the Peace and Justice trials.

Under these circumstances, when the Special Jurisdiction for Peace (JEP is the Spanish acronym) comes into being, Colombia might become a landmark case on the trial of managers of businesses as part of the transitional justice system.  On an international scale, up to now there have only been sentences by:

  • The Nuremburg trials, where 13 board members of the IG Farben pharmaceutical company were sentenced for their complicity in the crimes committed by the Nazi Army in Poland during World War II.
  • The International Criminal Court for Rwanda where Alfred Musema (manager of a tea factory), Felicen Kabuga (president of a radio and television chain), Hassan Ngeze (majority owner of a newspaper) and Ferdinand Nahimana (editorial director of a newspaper) were sentenced for the crimes of public incitement and conspiracy to commit the genocide of the Tutsi ethnic group.

Pending issues

The International Criminal Court For Rwanda sentenced several business owners for their role in the genocide of the Tutsi ethnic group.

Even though we know a little about the architecture of the new JEP, there are still a considerable number of complex issues that have not been resolved.  They are worth pointing out in the public discussion on the ratification of the peace agreement.  These are some of the dilemmas:

  1. How should business owners be tried when they are both victims and victimizers? Iván Orozco Abad has coined the term “politically complex victims” to identify civilians who are responsible for events that have led to their own victimization.  Illustrative cases are some business owners that financed paramilitary groups.

In the Peace and Justice proceedings there have been situations where certain cattlemen who had been affected by guerrilla kidnappings chose to finance self-defense groups and agreed to pay an annual quota of 8000 pesos per hectare patrolled by the groups, or who chose to turn their ranches over to the patrols to camp overnight.

However, when the paramilitary organizations expanded, the gang leaders increased the quota (to 12,000 pesos per hectare they patrolled) and started to demand other contributions.  Then many of their prior collaborators were opposed and because of that they were murdered or displaced.  In those cases, should the ranchers be considered victims, with the right to reparation? Or victimizers who deserve to be sentenced?

  1. How do we know if the financial support was the result of duress? The line between free will and force in furnishing money to illegal armed groups is very vague because there is rarely any access to signed documents or emails that show whether the transactions were voluntary or the product of duress.

The situation becomes more complex when the interaction between the extortionist and the victim of extortion becomes routine, so that with the passage of time saving his life is not the main motivation for the business owner who pays extortion, but rather the protection of his property and his operating system.

Paramilitary groups murdered many people accused of violating private property.

For example, in Justice and Peace proceedings there is evidence that many of the businesses that made regular extortion payments demanded by the paramilitaries received physical security for their ranches or commercial businesses as “compensation”.  That led to paramilitary groups murdering many people targeted for violating private property (thieves and drug addicts).

In that way, the business owners who were victims of extortion benefited in the long run from the conditions that the illegal armed group created.  Can they be considered complicit in the crimes that the Self-Defense Forces committed?

  1. Should business owners who benefited indirectly from the criminal acts of the guerrillas or paramilitary groups be held criminally responsible? Many businesses have been accused of benefiting by acquiring and developing productive projects in lands that were forcibly abandoned by settlers or that were sold because of death threats by an illegal armed group. Because of that we have the questions of whether the stockholders of a business that does not prove good faith can be free of guilt when it purchased land that was abandoned or stolen.  Should they face criminal or only civil responsibility?
  2. What should be done with the companies that have financed terrorist groups in the past but have been purchased and now are owned by other companies? Several of the companies that have been mentioned in Peace and Justice proceedings as alleged collaborators with the paramilitaries have changed their ownership and stockholder structure.  The dilemma is whether the new owners should take the responsibility of providing reparations to the victims or if they only should pay the costs to image and reputation that will come when it is divulged in legal proceedings that the company they purchased may have supported terrorism.  Situations like this one are more frequent than has been thought and some companies that have been investigated or accused of some kind of connection with the armed group have changed ownership in recent years; among them
  3. Chiquita Brands, which merged with the Irish company Fyffes;
  4. Kaltex (a Mexican textile company) which acquired 60 % of Coltejer stock;
  5. Almacenes Exito, which purchased Cadenalco;
  6. The pension funds Protección, Porvenir, Citi-Colfondos and Skandia, the stockbroker Correval and international investors who purchased Termotasajero;
  7. Cemex México who bought Cementos Diamante;
  8. Mayaguez S.A., which assumed control of 85.5% of the stock of Ingenio San Carlos.

Transparency is needed

Bogotá and Cundinamarca courts.

The laws that regulate the functioning of the Special Jurisdiction for Peace should make those aspects clear, so that we know to what point the companies that financed or collaborated logistically with the illegal armed groups have to take responsibility, whether through criminal sanctions for their boards or owners or through paying damages to the victims.

However, determining when it is “decision-making participation”, and specifically who must be criminally responsible and why, will be a complicated job that will require a serious discussion that involves not just academics, prosecutors, judges and international experts, but also those directly implicated:  the business owners.

If these issues are not resolved, it will be possible for the judges chosen for the JEP to act with a great deal of discretion, which would place in question the legal certainty for the companies.

*Professor in the Political Science Department of Javeriana University and researcher on governance, conflict and peace. The author is grateful for the collaboration of Vanessa Clavijo Barbosa and Oscar Cortés.

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