By Colombia en Transición, EL ESPECTADOR, August 13, 2020
(Translated by Eunice Gibson, CSN Volunteer Translator)
According to a database maintained by the Corporate Accountability and Transitional Justice Section (Base de datos de Justicia Transicional y Responsabilidad Corporativa) in the Justice and Peace agency, 429 economic actors have been accused of having financed or collaborated with illegal armed groups in the Colombian conflict, but there have been almost no convictions at all.
Three researchers associated with Oxford University last Tuesday published their book, “Transitional Justice and Corporate Responsibility”. The book is a document that puts together a database on businesses and business owners under investigation for having collaborated, financed, or been complicit in crimes committed by illegal armed groups in armed conflicts in various countries in South Africa, Europe, and Latin America.
Among all the cases studied in Europe, Africa, the Middle East, Asia, and Latin America, Colombia occupies second place with the second highest number of cases of business owners accused of participating in the Colombian armed conflict, with 439 actors reported in Peace and Justice tribunals. “There is something very important here, and it’s Colombia’s opportunity to have a Truth Commission in effect that would have the mandate to uncover what happened with the business owners in the conflict. This has not happened in any of the Truth Commissions that we studied,” commented Leigh Payne, coauthor of the book and researcher in sociology and Latin American studies at Oxford University.
Regarding Colombia’s case, Laura Bernal, professor of law at Javeriana University in Bogotá and coauthor of the research, mentioned that the landmark case reported in Colombia is the case of Urapalma S.A., where several oil palm companies were involved in forcibly displacing an Afro-Colombian community. They were allied with paramilitary groups, and 16 individuals belonging to the businesses were convicted of forced displacement. “One of the characteristics of this case is that it’s one of the few cases where high executives were convicted, and also that you have to understand their having participated in the displacement was not only committing an act of displacement using weapons, but also trying to prevent the return of people that had been displaced,” said the researcher.
The database constructed in the book demonstrates the phases of the investigations in the cases of the companies involved. In the Colombian case, the book specifies that there is a case in a civil court that is in the trial stage (Maderas del Darien) and 19 cases that are in criminal courts. They involve Urapalma, Agropecuaria Palmas de Bajirá, Palmas de Curvaradó, Palmadó, Palmas, Inversiones Fregni Ochoa, Alfonso Ardila Hoyos, Augura, C.I. Banafrut S.A., C.I. Unión de Bananeros de Urabá, Campo Elías de la Rosa, Manuel Morales, Chiquita Brands International, Drummond Ltd., Fondo Ganadero de Córdoba, Francisco Serna Palacios, Guillermo Gaviria Echeverry, Jaime Blanco Maya, Jaíro Alberto Banquet Paez, Ocensa, Oscar Darío Ricardo Robledo, Oscar López, Pedro Nel Rincón, and Uriel de la Ossa.
Another case that they document in detail is Chiquita Brands, which admitted having financed the United Self-Defense Forces of Colombia (AUC in Spanish) and also guerrillas, under “duress”. This, according to coauthor Leigh Payne, is one of the most common reasons given by companies that have committed these acts. “When you look at these cases, many businesses say that they joined or financed illegal armed groups because of extortion, but that’s not what happened in all of the cases; in reality, many times it was because the ultimate goal of the company was their economic interests.”
In fact, in the case of Chiquita Brands, the document mentions that the company first moved to dismiss the case, but at the beginning of 2018, the company reached a private agreement that wasn’t revealed to the families of the victims. Because of that, the Attorney General’s Office prosecuted 13 officials of the company for allegedly having financed paramilitary groups. However, even though the case had been through several stages in the litigation, there was never a final judgment, either in Colombia or in other countries like the United States where the victims had filed complaints.
And like many other cases resulting from the armed conflict, the level of impunity in the cases involving business owners is high. Even not stating what the rate might be, Gabriel Pereira, an Argentinian researcher, explains that what they found in their investigation is that “there is a very powerful business veto, so that many of these cases throughout the world are not resolved in favor of the victims.”
In the book, one of the chapters, titled “Corporate Veto”, explains how the power of the companies “gives them the capacity to escape justice for serious violations (…)”. In the words of the researchers, the main finding is that when the big multinational businesses have found themselves involved in litigation for human rights violations, in the majority of the cases, investigations against them have resulted in failure.
According to Bernal, the role of the “third parties” that is specific, like being one of the actors in the armed conflict in the Special Jurisdiction for Peace and in the Truth Commission, is fundamental to being able to make clear what happened in the country with economic groups and their methods of working with the illegal armed groups. “When we reviewed the documents from Justice and Peace where they mention more than 400 business owners, we realized that the work and the findings there were historic. There are so many cases that have remained there with very few results,” he pointed out.
One of the difficulties in solving these cases of business responsibility, according to the authors, is the difficulty in arriving at and understanding the chain of command in the businesses. In the majority of cases in Colombia and in the world, the low and middle-ranking employees are convicted, but not the “deciders”. The reason, as was explained in a conversation moderated by the portal DeJusticia, is that it’s very difficult to reach the top executives that, on many occasions, gave the orders.
The work of the Truth Commission, according to the three analysts, will be fundamental in figuring out the new ways, modus operandi, patterns and systems in the acts committed by the economic actors. Bernal insisted that “The most complicated work of Colombia’s transitional justice system is that now that we know that the appearance of the civilian third parties in the JEP won’t be obligatory, but rather that these are the same cases that we already know about and that have open investigations in the Attorney General’s Office or in Justice and Peace; that has repercussions that are very regrettable and that is that in the JEP they wont penalize anything new in this area.”