Ley de Víctimas de Colombia y la responsabilidad de las personas jurídicas por violaciones de derechos humanos
| Autor | Lina M. Céspedes-Báez |
| Cargo | Directora Área de Género de la Consultoría para los Derechos y el Desplazamiento (Codhes) |
| Páginas | 177-213 |
Page 179
In 2011, after four years of lobbying and political wrangling, Colombia approved Law 1448, (By which measures for attention, assistance, and integral reparation of victims of the internal armed conflict victims are enacted), commonly known as the Victims Law, a statute aimed at the redress of the victims of the internal armed conflict.1 The Victims Law marks a turning point in the way the State had been addressing the consequences of violence in the country, shifting the focus from the perpetrator - the person charged for criminal activity - to one based on the civilian population that has suffered the consequences of the confrontation. The Victims Law is considered critical to the country's reconciliation, much more since 2005, when President Uribe's Government approved Law 975/05 (Peace and Justice Law) in order to make possible the paramilitary demobilization. The Peace and Justice Law was highly criticized because it did not address the victims' rights2 and focused instead on offering substantial benefits and alternative punishments for demobilized paramilitaries.
Page 180
The Victims Law will be a subject matter of research for many years to come. Its aims are broad: to be the comprehensive body of law to address civil population claims related to the armed conflict, and in that sense, it purports to include the necessary legal reforms to restore the rule of law in the country through the enforcement of victims' rights.3 This new law requires important changes in the executive and judicial branches at the national and local levels, puts in place an additional civil procedure to deal with land dispossession, and sets up lenient rules of evidence to benefit the victims. The Law also incorporates a broader definition of victim, leaving aside the stress on the forced displaced population and its regulation in Law 387/97, through the inclusion of numerous other different wrongs and harms. In brief, the enactment of the Law has meant reforms to Administrative, Criminal and Civil Law. Therefore, it is not hard to see why the Law has awakened at the same time hope, anxiety, and skepticism.
Currently, the attention of the government, civil society and scholars has focused on the major issues of the Law, specifically land restitution and assistance for victims. However, this new body of Law, with its 208 provi-sions, is broader than that, and a close look at its articles is urgently needed. A careful review of the law provision by provision is critical to envision its impacts in specific areas, for example in the prosecution of sexual violence crimes, reconciliation or the broadening of the Colombian state bureaucracy.
One little-studied and apparently forgotten provision is article 46,4 which seems to put in place a specific directive to enhance the prosecution of
Page 181
juridical persons5 for violations of human rights and international humani-tarian law in the context of the Colombian armed conflict. Located in Title II, Victims' Rights during Judicial Procedures, the article orders the investigation of the probable nexus between illegal armed groups and juridical persons through voluntary economic support. Although the Law has elicited a great deal of commentaries and studies, this prescription has attracted little, if any attention. In fact, the drafts of the decrees that will regulate the implementa-tion of the Law so far have been silent about it.
This paper aims (i) to understand how Article 46 was included in the Victims Law, (ii) to analyze its real capacity to grasp the dimension of the on-going relationship between business and human rights in Colombia, (iii) to determine its compliance with international law standards on the sub-ject, and (iv) to envision different alternatives to litigate in Colombia cases against national and international corporations engaged in gross human rights violations in the context of the Colombian armed conflict if article 46 application demonstrates no efficacy. This last objective will be considered only briefly as it is part of ongoing research at Universidad del Rosario, the conclusions of which will be addressed in a future article.6
This article does not aim to be a comprehensive account of the political negotiations sustained to approve the law, nor the article under study, but
Page 182
instead to comprehend the history of article 46 in order to draw some legal conclusions about the legal understanding of the problem by members of Congress, and the provision's adequacy to judicially tackle the involvement of corporations in the internal armed conflict. In this sense, this article does not consider other non-judicial tools and institutions that can contribute to establishing the real connections between corporations and grave human rights violations in the internal armed conflict. We recognize the value of such initiatives and alternative ways to redress the victims; however they are beyond the scope of this research. We were interested in the direct inter-relation between corporations, human rights violations and the available judicial procedures in Colombia, which called our attention to article 46. The responsibility of the Colombian State for third parties' human rights or humanitarian law breaches will therefore not be studied in this paper.
The methodology used in this paper was based on document reviews, focusing on the different drafts of the Victims Law, and transcripts of the congressional debates. When the document review left some points of the law-making procedure unclear, interviews were held with assistants and advisors to members of Congress who introduced the proposition of what today is article 46.
This evaluation will show how the inclusion of article 46 was part of a scheme to provide the Colombian State with more economic resources to cover reparations, and was not envisaged as a means to comply with inter-national law standards. The scarce debates7 about the provision illustrate how the discussion taking place in the country regarding Chiquita Brands and other corporations' involvement in gross human rights violations in Colombia concerned some members of Congress, especially those of the left wing. Legislators also expressed some uneasiness regarding the first judicial decision issued within the Peace and Justice process, where the State ended up being held subsidiarily responsible for a considerable amount of money to compensate the victims in cases where the investigation bodies were unable to identify the perpetrator and the perpetrator's group's assets.8 The transcripts of the Congressional debates and the interviews held shed some light on its genesis, essentially on the fact that the article was part of
Page 183
a more comprehensive proposal that was discussed and then tabled in the first of the four required debates.
This article sets forth the history of Article 46, its lack of capacity to unveil the connections between business and human rights and humanitar-ian law violations in Colombia, and sets forth some probable solutions that will need further investigation to fill out the lacuna that already exist in the country on this subject. Part I provides an overview of the main features of the Victims Law and describes the national and international environment in which it was approved. Part II analyzes in depth the shortcomings of article 46, drawing attention to its wording and framework. Additionally, this section will advance some preliminary observations on Colombia's predilection for criminal procedures to ensure the transition to democracy, and will open a discussion about the adequacy of the Colombian torts regime to support this goal. This latter debate will be addressed in depth in another article.9 Part III explores the international law standards regarding corporations and their involvement in human rights violations. It establishes that international law places an obligation on States to provide judicial and/or non-judicial ways to determine corporate responsibility in these situations, and evaluates if article 46 complies with this duty. Finally, Part IV proposes some conclusions and matters for further investigation.
On June 10, 2011, the Victims Law approved by the Colombian Con-gress was officially published; it represents an ambitious body of law intended to redress the harms suffered by the victims of the Colombian armed conflict. President Juan Manuel Santos, elected in June 2010, had made its enactment one of the main goals of his administration. He ran on a platform that claimed that his Government would be one of the centre and of national unity, and the approval of the Victims' Law would be the way to prove it. The Law would also be a symbol of his departure from his predecessor, Álvaro Uribe Vélez, and of what he represents: the Colombian extreme right. After six months of intense debates, President Santos's Government could claim a victory with its enactment. To stress the legal and political importance of the event he signed the Victims' Law in a public ceremony to which he invited the United Nations Secretary General, Ban Ki-moon, among other personalities.
Page 184
President Santos joined UN offidals, legal experts, and domestic and international media in declaring the Victims' Law a landmark in Colombia's recent history. And, indeed it is: the first and most comprehensive effort to regulate the consequences of the internal armed conflict on the civil population.
The Victims' Law is the product of several processes at the domestic...
Para continuar leyendo
Solicita tu prueba