La responsabilidad de las empresas en el conflicto armado colombiano: algunas reflexiones jurídicas
(Translated by Eunice Gibson, CSN Volunteer Translator)
Information is not a luxury; it is a right
September 20, 2016
By Jorge Freytter-Florian
In the Colombian conflict, many national and transnational businesses systematically violated human rights. The Final Agreement for the termination of the conflict and the construction of a stable and lasting peace raises this question. To clarify this subject for us, we have had the opportunity to interview Doctor of Laws and Professor at the University of the Basque Country (Universidad del País Vasco), Juan Hernández Zubizarreta.
However, there are a lot of questions that arise here. Is the Special Jurisdiction for Peace and are the commitments on human rights competent to judge the companies as actors in the armed conflict? Are the practices of the transnational companies also under that jurisdiction? What crimes can be punished? And what penalties can be imposed on the companies?
To unravel these questions we are counting on the help of Professor Juan Hernández Zubizarreta, Doctor of Laws and Professor at the University of the Basque Country and Investigator for the Observatory of the Multinationals in Latin America.
Before we get into this subject more deeply, we would like to know, what is your general impression of the Final Agreements?
My first impression is positive. I believe that the Colombian people need these agreements in order to begin a new phase of confrontation with economic and political power.
I believe that a change of arena in the characterization of these struggles was an important demand for the Colombian people to make, because the armed conflict has generated so much pain and the achievement of a new social model seemed impossible by this means. Besides, confronting capitalism and all its hegemonic forces in this setting will require additional effort, the creation of new forms of resistance, and an accumulation of forces that can’t be accomplished by armed confrontation.
Do you believe that peace has arrived in Colombia?
What happened in Havana is very important; they have signed some agreements that we hope will open new areas for the political and social struggle, but peace is another matter.
Galtung talks about negative peace, referring to the absence of direct violence. In this case, the Agreement is what refocuses the armed confrontation between the FARC-EP and the government of Colombia. But the social movements and the left are fighting for a positive peace that removes the structural violence of a tremendously cruel capitalist and patriarchal system. There is not peace in the profound sense of a conclusion without social justice and without a different political and economic model.
However, the plebiscite on October 2 does not allow much space for nuance, and the use of the word “peace” is being changed into an “electoral” weapon. But we cannot lose sight of the fact that what was agreed to in Havana are some very important Agreements, but they are just Agreements when all is said and done. Even so, the triumph of Yes is indispensable if we are to continue through the next phases.
What are the most important challenges in the next phase that begins if the Agreements are ratified in the October 2 plebiscite?
Paramilitarism and police and military violence need to be pursued and eradicated immediately. We can’t have social activists and defenders of human rights continuing to be killed. There have to be guarantees that in Colombia you can “do politics” without getting murdered. That is an indispensable condition.
On the other hand, the Agreements don’t imply a radical transformation of the economic and legal systems. They are the beginning of a new political phase that calls for a reactivation of the social and popular mobilizations that seek new power relationships.
This will call for a big dose of unity in the different anti-capitalist and anti-patriarchal forces, and for the broadening of alliances with the different struggles against the neoliberal model that the Santos government, the transnational corporations, and the dominant Colombian bloc have put into effect. The concentration of land ownership, the democratization of the country, and the fight against inequality will have to be the central focus in the battle.
Besides that, international solidarity ought to be another front in the struggle and ought to be kept in mind. The reinforcement of networks that oppose global hegemonies is very important in order to halt and reverse the plans of the big transnational corporations.
Furthermore, the Colombian popular movement must elaborate a development model that is radically different from the one that capitalism imposes. The transnational corporations want to secure their areas of economic power and convert Colombia into a new mining “locomotive”, among other things. Because of that, the fight against the trade and investment agreements, the launching of food sovereignty, and the ideas that echo socialism and that echo feminism are unavoidable challenges for the new model of social and economic development.
Let’s get started on the main purpose of this conversation. What do you think, will the Integrated System of Truth, Justice, Reparation and No Repetition, including the Special Jurisdiction for Peace and the commitments on human rights have the authority to judge national and transnational companies?
Absolutely yes. An analysis of the document makes that clear.
I’ll highlight some of the powerful ideas that occur throughout the text.
Among the basic principles that make up the Integrated System of Truth, Justice, Reparation and No Repetition, there is insistence on the right of the victims to justice and to the protection of their rights. The centrality of the victims is an essential element. Because of that, the truth, justice and reparation of their rights is one of the objectives of the document. The national and transnational companies cannot in any case escape that general principle.
Paragraphs 15 and 32 establish that the Integrated System is to be applied to everyone that participated directly or indirectly in the armed conflict. They add that the System will also be competent to judge such conduct as financing or collaboration with paramilitary groups, unless the conduct is the result of coercion.
They also refer to the collective responsibilities of the government for the practices and actions of the government and other public entities, responsibilities of the FARC-EP and of the paramilitaries, as well as any other group, organization or institution, national or international that has taken any part in the conflict.
It’s true that the document does not establish any heading that expressly mentions companies as possible actors in the armed conflict, but an overall reading of the text and the stipulations in some paragraphs leaves no doubt about the authority of the Special Jurisdiction for Peace to judge the companies.
Is there any other paragraph that is especially applicable?
Paragraph 19 of the text seems to me to be very important. It specifies that the legal frameworks referred to include principally International Human Rights Law and International Humanitarian Law and that a legal analysis appropriate to the System can be made by adopting their resolutions or decisions that relate to the conduct being studied. That analysis might be different from the analysis under established legal, disciplinary, or administrative authorities. That means the justices also have to apply the international legal framework to the companies and they have broad interpretative latitude to be used in legal analysis. This in no case means arbitrariness, because they are confined to the above-mentioned framework.
We should not be surprised that paragraph 19 – does not mention companies – since they have access to the global scope of the Investor-State Dispute Resolution Mechanisms – those so-called arbitration tribunals – for the defense of their interests. That is a system parallel to judicial authority – they are private tribunals – favorable to transnational companies that work beside national and international judicial authorities. It’s justice for the rich. Only the companies sue the governments and there is no formal provision through which a government could sue the foreign investor. The transnationals get to choose the jurisdiction. There are difficulties in getting the hearings to be open to the public and there is no requirement to exhaust internal national remedies. More than that, there can even be an appeal of the decisions of ordinary tribunals but there is no appeal of an arbitration decision. The arbitrators have leeway without any limits for their interpretations.
From the material point of view, they apply the rules of the commercial and investment treaties and contracts exclusively, and not human rights laws.
The Integrated System for Truth, Justice, Reparation and No Repetition, including the Special Jurisdiction for Peace and the commitments on human rights are all to the contrary. They place International Human Rights Laws at the center of their jurisprudence. However, given the specific characteristics of the Final Agreement, the scope of interpretation by the Justices has to be very broad and they have to rely on pure legal theory. It can be a system that neutralizes the asymmetry that exists between corporate laws that favor the transnational companies and the rights of the majority of society. Why not grant the Justices the same interpretative capacity that the arbitrators in the arbitration tribunals have when they are judging companies?
What are the procedures and initial mechanisms for prosecution of the companies?
Paragraph 48 takes up the ways that the Panel for Recognition of Truth and Responsibility and for finding facts and actions can receive the reports presented by the Attorney General and other agencies and institutions of official character, but reports made by organizations of victims and by Colombian human rights organizations relative to acts committed by the companies during the armed conflict can also be included.
It specifies, in addition, that they should receive the same treatment. Therefore, and above and beyond all of the foregoing procedure, the role of civil society will be very important, because there are so many reports – and with a high level of accuracy – circulating in Colombia in relation to the impunity with which the national and transnational companies were making use of the armed conflict. Starting with this, the Justices may or may not consider the actions reported and activate this procedure.
At present are there sources, indications, evidence . . . on which to file complaints against the companies?
It would take a long time to enumerate the work that has been done in extremely unsafe conditions by thousands of people and by an important number of organizations, social movements, observatories, NGO’s, labor unions, lawyer collectives, etc. They have prepared complaints, reports and very rigorous documents on the tremendous responsibility of companies in the armed conflict. These documents would be given to the Panel for Recognition of Truth and Responsibility so it can do the necessary fact-finding. Many of those findings will be converted into “official” documents and will become part of the body of evidence that the Justices will have to evaluate.
From my personal experience, I can identify for the Permanent Tribunal of the People and for the succeeding decisions that have been coming down, the responsibility of transnational companies in Colombia. There is a lot of data and evidence that involves them in the armed conflict.
On the other hand, the role of the Attorney General’s Office has been completely unsatisfactory and the impunity of the companies is what has prevailed in Colombia. In spite of that, at the end of 2015 a special group of investigators and prosecutors was created within the Department of Transitional Justice. The group is working on 50 cases as a “pilot project”. The first results show the validity of some of the complaints generated by the popular movement. We see the connections and the financing of paramilitary groups by banana growers, cattle ranchers, palm growers, mining companies, oil and gas and energy companies . . . etc.
How will they establish the companies’ responsibility?
When a company does damage or violates human rights, it has to respond to a civil claim. That means, it has to furnish reparations to the victims for the harm done and if the harm constitutes offenses or crimes, it has to answer criminal charges. In the case we are discussing, if the companies have taken actions or have acted as accomplices, collaborators, instigators, abettors or accessories to the conduct defined in paragraph 40 – “Crimes against humanity, genocide, serious war crimes, taking of hostages or other serious deprivation of liberty, torture, extrajudicial executions, forced disappearance, sexual assault and other forms of sexual violence, abduction of minors, forced displacement, as well as recruitment of minors as established in the Statute of Rome “– will not be the object of amnesty or pardon or of any equivalent benefit. They are to be treated criminally.
On the other hand, the members of the administrative committee, the directors, the executives, the officials, employees and representatives . . . of the companies are natural persons and the applicable legal rules described previously are also obligatory for them, especially in civil and criminal court. For example, they are liable for having financed paramilitary groups to commit crimes in support of the companies.
There is definitely a double charge. On one hand, against the companies, and on the other hand, on the individuals responsible for the very serious conduct defined in paragraph 40 of the Integrated System of Truth, Justice, Reparation and No Repetition, including the Special Jurisdiction for Peace and the commitments on human rights.
Does international legislation recognize the responsibility of national and international companies?
There is one first premise, which is that companies are legal persons, and thus are subject to the law, so that the International Human Rights Law covers them – as well as the Colombian legal system does.
The responsibility of transnational companies in the area of international law is not a settled matter in international legal doctrine. For a long time, human rights have been held to be individual rights against the power of the government. By now the theory that recognizes that human rights can be violated by both legal persons and natural persons has become consolidated. That means that companies can also violate human rights. This is a very important topic, so let’s look at some of the issues.
Article 29 of the Universal Declaration of Human Rights provides as follows:
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law, solely for the purpose of giving due recognition and respect for the rights and freedoms of others, and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
The companies, like every natural person, must respect national and international law. This is a principle that has been adopted in legal doctrine and has been incorporated into numerous international agreements. In addition, the Universal Declaration of Human Rights is binding and is not a mere ethical recommendation. In International Law, the legal system of resources is collected in Article 38 of the authorizing Statute of the International Court of Justice: international conventions, international customs, general principles of law, and court decisions. In International Law, customs have the same legal force as international treaties. Customary International Law is in force and is obligatory. The Universal Declaration of Human Rights forms a part of that and it is a real and peremptory norm or jus cogens that embodies and protects essential interests of the international community. According to Article 53 of the Vienna Convention on Treaty Rights, a peremptory norm may not be repealed and there can be no agreement to the contrary under another law that is not peremptory. The same is found in Article 103 of the United Nations Charter. It provides that in case of a conflict between agreed-upon obligations of United Nations members under the Charter and their agreed-upon obligations under any other international agreement, the obligations imposed by the United Nations charter shall prevail.
In addition to the above-described texts, there are definitely a very important number of laws and international instruments that are applicable to the companies. They are laws that refer to the dignity inherent in human beings and are obligatory and irrevocable because of that.
The justices must consider the international norms with which the national and international companies have to comply, even beyond what Colombian legislation may require.
Is there any specific law referring to the responsibility of companies for the violation of human rights?
The UN Guiding Principles for Business and Human Rights: put into practice within the framework of the United Nations to “protect, respect, and remedy”, are the most important international norm reference, with the greatest consensus in the international community, and at the heart of the United Nations Organization; Colombia has also adopted those Principles.
In Paragraph II, sub. n˚ 11 provides that “companies shall respect the human rights of others and should address adverse human rights impacts with which they are involved”. This reading of these Principles is the source of the responsibility to respect human rights as a global standard of expected conduct for all business enterprises wherever they operate. This responsibility is accentuated when we refer to practices that violate human rights such as those collected in Paragraph 40 of the Integrated System for Truth, Justice, Reparation and No Repetition, including the Special Jurisdiction for Peace and the commitments for human rights.
It is true that the voluntary character of these Principles downplays their juridical strength, but in the case we are discussing and in accordance with Paragraph 19 of the Integrated System, the Justices may assign them an imperative character that they believe to be in agreement with International Human Rights law, considering the seriousness of the facts of the case and considering their capacity to adopt resolutions or decisions based on a legal analysis under the Integrated System.
How could the responsibility of the companies and of the individual persons be proved?
The burden of proof is as always. The victims or the government have to prove responsibility for the damage caused by the companies or by the natural persons who manage them or work for them. However, international law doctrine extends the legal obligation of the companies to prevent possible damage. This inverts the burden of proof and relates it to the means and abilities of the companies.
In that way, the Guiding Principles for Business and Human Rights, ratified in 2011 by the United Nations Human Rights Council, consider that the closer the business is to a conflict zone or risk situation, the more effort the business must make to avoid incurring responsibilities for human rights violations. Their due diligence and “prevention” have to fulfill the classic rule for proof of damages caused by the business. The Principles also provide that there can exist complicity “when a business contributes or appears to contribute to the adverse consequences to human rights caused by other parties.”
For example, if a company sees that all the nearby communities are opposed to the planting of soy in a particular area and overnight the communities are “displaced” and the opposition disappears, the due diligence and prevention requirements emanating from the Guiding Principles for Business and Human Rights must take that into account at the time of establishing responsibility. The business would have to demonstrate that it had nothing to do with the displacement of the communities and with the “mysterious” disappearance of opposition to the soy project.
The business owners that allege good faith in their purchase of land that was involved in evictions or forced displacement prior to their acquisition would have to demonstrate that they acted with due diligence in assuring that their actions would not have an adverse impact on the exercise of human rights.
What punishments might be imposed on the companies?
First of all, the Integrated System for Truth, Justice, Reparation and No Repetition, including the Special Jurisdiction for Peace and commitments on human rights, provides for two types of punishment: from five to eight years for those who admit the truth and accept their responsibility in the Admissions Panel for the kinds of crimes identified in Paragraph 40 and from 15-20 years when there is no admission of the truth and no acceptance of responsibility.
These punishments are applied to natural persons who have committed serious crimes in aid of the companies that they manage, where they are employed, or which they represent – financing, for example, paramilitary groups – and in addition, they have to repay the victims for the harm they caused.
With respect to the criminal responsibility of the companies, there is a gap in the law (obviously a company cannot be imprisoned) – and the punishments provided do not include that possibility. It should be evident that they must provide a civil remedy for harm caused to the victims, but in other laws it is provided, in case of criminal responsibility, fines, exclusion from public contracts and subsidies, dissolution of the company . . . etc.
The Justices must base their decisions on international law and avoid impunity for practices such as crimes against humanity or genocide, among others, and must consider the degree of planning, of complicity, of collaboration, instigation, inducement or acting as accessory after the fact. The Justices also have to clear up possible contradictions between the degrees of participation proved and what the Agreement provides in Paragraph 31 regarding “the conduct of financing or collaboration with paramilitary groups that is not the result of compulsion and regarding those individuals whose participation was decisive or habitual”. I think the character of this participation cannot lessen the degrees of planning, complicity, collaboration, instigation, inducement or acting as an accessory after the fact.
To my way of thinking, involvement of transnational companies as direct or indirect actors within the Colombian armed conflict – acting in the extremely serious conduct listed in Paragraph 40 of the Integrated System of Truth, Justice, Reparation and No Repetition, including the special Jurisdiction for peace and the commitment for human rights – require the expulsion from the area where they took their actions, and, depending on the seriousness of the actions, even expulsion from Colombia. The dissolution of national companies for the same actions is another sanction to consider.
The fact that Colombian law does not regulate the criminal responsibility of businesses does not prevent the Justices from applying it, because according to Article 19, mentioned previously, the legal references are International Human Rights law and Humanitarian Law. In addition, when their resolutions or decisions are issued, they can make a legal analysis appropriate to the System. That permits them to apply criminal responsibility to companies as it is applied under international law.
Why are transnational companies able to act globally with such impunity?
That is a very complicated question, but from a legal perspective, the existence of a new lex mercatoria or Global Corporate Law explains the impunity with which they are acting.
In the lex mercatoria, the rights of transnational companies are shielded by a complex legal framework made up of thousands of laws – contracts signed by the big corporations; regulations, provisions, adjustment policies and loans conditioned on the World Trade Organization (WTO), the International Monetary Fund, and the World Bank; the Dispute Settlement System of the World Trade Organization and the arbitration tribunals – characterized by their legal stringency. The outright opposition by the great powers and the transnational lobbies to the passage of laws that could put their business perspectives at risk has a very simple explanation: the current global corporate laws are designed in their image and likeness. They are “laws” for the defense of the interests of the big corporations; they are laws for the rich.
Besides that, the multinationals protect their rights by means of supranational laws of multilateral, regional, and bilateral character. They weaken the sovereignty of the host nations. They are obligated, nevertheless, to conform to the national laws that have previously been submitted to the logic of capitalism.
In the case of Colombia, the alliance between corporate power, the government, and the dominant classes has deregulated, privatized and destroyed all of the public policies that support the majority of the people, using the framework of an armed conflict and generalized violence against popular movements. Colombia is an excellent landing field for transnational capital.
And, together with the weakness and complicity of governments to control transnational businesses, there exists an absence of mechanisms and procedures adequate to demand the responsibility of these companies at the global level, along with regional and international systems that are not designed to receive complaints against the big corporations and there is a lack of compliance and execution of the decisions of the competent agencies.
The architecture of impunity that emerges from the above-described lex mercatoria explains the law of global corporate power.
To conclude then, can you offer any final reflection?
From a general perspective, and as it relates to the Victims of the Conflict, the Agreement, which incorporates the Integrated System of Truth, Justice, Reparation and No Repetition, including the Special Jurisdiction for Peace and the commitments on human rights, has to be “watched” and “controlled” by the popular movements. Corporate power, the government, and the dominant bloc will exert pressure so that the Special Jurisdiction is emptied of content and is put at the service of the dominant classes. With regard to the Special Jurisdiction for Peace and the commitments on human rights, the principles of prioritization and of selecting those most responsible will be interpreted by the most reactionary sectors as a hindrance to the development of the Special Jurisdiction. Only the organization and the unity of popular struggles can exert enough pressure so that the Agreements are interpreted in favor of the emancipation of the majority of the people.
The final Agreement contains a sub-paragraph referring to the Agreement on the Victims of the Conflict and that incorporates the Integrated System of Truth, Justice, Reparation and no Repetition that includes the special jurisdiction for peace and the commitments on human rights.