Does the fact that the Truth Commission was extrajudicial make its recommendations non-binding?
English version by Isabella Crouch[1]
Read more about the topic of the post in our Review:
(Un)constitutional Change Rooted in Peace Agreements
By: Francisco Julio Taborda Ocampo[2]
Since the final report of the Commission for the Clarification of Truth, Coexistence and Non-Repetition (hereinafter Truth Commission or CEV), was delivered on the 28th of June at the Jorge Eliécer Gaitán Theatre, as well as the successive deliveries of its different chapters, much has been discussed about the nature and scope of the clarification it has produced and about whether its recommendations are binding or not.
For example, in an article published on the 29th of June[3], the Colombia + 20 portal asked university professor and lawyer of the Colombian Commission of Jurists Juan Carlos Ospina, why the recommendations of the CEV are not binding, and he answered:
“The Commission has an extrajudicial nature and therefore its purpose is to give us reasons, motives and explanations of what happened in the armed conflict. In this way, it is not seeking a sentence, but it is informing the country what it found and from this, it established both a diagnosis and the recommendations that must be addressed to avoid repetition”.
In relation to the above point of view, it is one thing for the CEV to have an extrajudicial character, and the binding or non-binding character of its recommendations is a separate thing. On this point, it is worth remembering that the second subsection of the first article of A.L. 2 of 2017, a constitutional reform made to try to give a shield to the Peace Agreement, establishes that:
“The institutions and authorities of the State have the obligation to comply in good faith with the provisions of the Final Agreement. Consequently, the actions of all State bodies and authorities, the normative developments of the Final Agreement and its interpretation and application must be consistent and integral with what has been agreed, preserving the contents, commitments, spirit and principles of the Final Agreement.” (Congress of the Republic, 2017)
In this sense, it should not be overlooked that if the CEV is the result of the Peace Agreement, it would not make sense for its recommendations to not have a binding effect on State institutions, or at least to not extend to them the mandate contemplated in the aforementioned paragraph. This of course has complexities, because among the many recommendations formulated by the Truth Commission, are some that are of an institutional nature that are much easier to comply with, and others of a long-term nature that, on the one hand involve the action of several state institutions and, on the other hand, depend on the transformation of cultural imaginaries, and upon their fulfilment (in the long term obviously) various state agencies and various sectors of society in any case have responsibilities.
The question then is not whether the recommendations are binding or not because, as noted above, all of them have a greater or lesser binding effect depending on the task or responsibility they give to the different state entities or socio-economic sectors. Instead, it is about how much political will subsequent governments genuinely have to comply with said recommendations; something in which the president elect has not hesitated, since during the launch of the report, and although at that time he had not yet been sworn in, Gustavo Petro said he would comply with the recommendations “to the letter”.
Those of us who participated in the construction of the decree that created the CEV (Presidency of the Republic, 2017), faced this debate. For some of us, it was important that the norm established a mandatory nature not only for the provision of information to the CEV (a prerogative that was materialized in articles 15 to 18), but also for the compliance with the recommendations (a purpose that did not prosper in the discussions).
So what was the solution to what for some of us could be considered a vulnerability of the Commission’s final report? to establish a committee to follow up on the recommendations, which was embodied in Article 32 of the decree. The first two paragraphs of this article indicate the nature and scope of this body, as follows:
“Article 32. Follow-up and Monitoring Committee. A Committee for the follow-up and monitoring of the implementation of the recommendations of the CEV will be created, which will become operational once the final report has been published.
In order to fulfil its task, it will facilitate the dialogue with different entities and victims’ and human rights organisations, among others. This committee will be composed of representatives from different sectors of society, including victims’ and human rights organisations, among others. The committee will submit periodic follow-up reports on the recommendations. These reports should have a territorial, differential and gender focus. The committee shall take the necessary measures to disseminate its reports widely in the national and regional media”.
This Committee has already been installed and is preparing to carry out its work, for which it will have to design a methodology that will allow it to follow up on the tasks entrusted to it. As a follow-up and monitoring space, it is made up of representatives of civil society and ethnic groups or organisations of various kinds, thus covering an important regional spectrum. It will have to define how much enforceability it will give to each of the recommendations, since this is the basis for establishing indicators of effective compliance, whilst taking into account differential approaches, which will make it possible to visualise levels of progress, stagnation, challenges or recommendations effectively fulfilled throughout the period for which this body was created. The other point of the debate has to do with the characteristics and scope of the clarification produced by the Commission. In this sense, the aforementioned Colombia +20 article adds:
“Being an extrajudicial entity, that is, one that does not punish those responsible, the Truth Commission was created to clarify in an ethical, historical and political way the truth of the Colombian armed conflict”.
The above statement is also imprecise, since the clarification produced by the Commission clearly has an iusfundamental connotation, for at least two reasons: (i) because the rights of the victims are indisputably human rights, as they are part of the block of constitutionality and have been integrated into the text of the Magna Carta, by virtue of the various constitutional reforms derived from the Peace Agreement reached with the FARC; and ii) because the CEV was created with a constitutional nature, precisely for the purpose of not preventing access to any archive (or providing conditions of access that would protect the information contained in them but would allow its processing by the CEV), and so that no public entity would oppose it or give “legal” reasons for not providing information, definitively preventing access to archives or refusing to comply with the recommendations that set them short, medium or long term tasks or commitments. The extrajudicial nature of the clarification obtained by the report, as is the case with many of the truth commissions that have been set up around the world, opens up the possibility of collecting testimonies more freely (although not with less rigor) and of gaining wider access to archives and diverse materials. This is because judicial pressure not only restricts, but often distorts or biases the places of enunciation of the stories, due, among many causes, to the legal implications of making false statements or statements that are far from reality, or of pointing out or denouncing people with their own name as perpetrators of human rights violations.
Now, as argued by Hayner in his iconic book Unspeakable Truths, the first edition now being 20 years old, “Past experience shows, for example, that truth investigations have sometimes made subsequent trials more consistent.” (Hayner, 2008, p. 129). This is because, to a certain extent, the extrajudicial is a contextual truth, in which socio-cultural, historical, and even ethnic or religious elements are preponderant in the unveiling and occupy a central place. There is no doubt, however, that for judicial officials, whether from the ordinary jurisdiction or the Special Jurisdiction for Peace, the CEV report is an essential input for understanding the dynamics, patterns, and contexts in which the events occurred, and although they cannot formally incorporate the findings of the final report into their investigations or rulings at the same level and with the same effectiveness as the evidence as such, they can still take them into account as part of the analysis they carry out.
In this sense, it is virtually impossible to draw a sharp dividing line between what we consider “judicial” or “extrajudicial”, since ultimately, the conviction formed by a judge also includes many elements external to his or her evidentiary exercise, among them, precisely the findings of official or unofficial memory exercises. As Hayner rightly points out:
“The declared intention of most truth commissions has been to strengthen or contribute to justice in the courts. Many commissions have referred their case files to the judiciary or prosecutors’ offices, and have recommended prosecution or suggested measures to strengthen the judiciary in the future. However, whether or not a commission’s work leads to prosecutions has been determined by many factors beyond the commissions’ control: the strength and independence of the judiciary; the political will of the judiciary and the executive to challenge powerful perpetrators; the power of the political opposition or nongovernmental organisations, which can press for prosecutions and try to block or overturn an amnesty; and the ability, experience, and resources of the prosecution to move forward with high-profile cases.”
This long reflection, the fruit of that formidable investigation that is “Unspeakable Truths”, concludes with a statement that is very relevant for the current moment in Colombia: “There is no intrinsic reason for a commission not to contribute to the holding of subsequent trials” (Hayner, 2008, pp. 133-134).
What is important in the end is not the discussion about whether there is a radical dividing line between judicial truth and extra-judicial truth (which, as we have seen, is very difficult to draw categorically) or the no less pressing discussion about whether there is a “legal” obligation to comply with the recommendations of the CEV report, as discussed above. Perhaps more important is how we achieve social peace as a community, and how we prevent the repetition of the grave human rights violations that the country has witnessed impassively for decades.
Likewise, what is at stake is how the different state entities will be articulated and how citizen initiatives will be strengthened to build such a synergy that the discussion is no longer about the binding element, but instead is about the complexities of each group of recommendations and how to comply with them. It is also important that the judicial truth is fed back with the one produced by the CEV, or other local memory initiatives that are abundant in Colombia, because it provides broader elements of analysis to understand this delicate matter that we could call the phenomenology of the Colombian armed conflict; its motivations, perversions, degradation, and, fortunately, later on, the attempts to overcome it, until we finally reach a Total Peace, as the current Government and broad sectors of Congress and civil society want.
References
Congress of the Republic (May 11, 2017). Legislative Act 2 of 2017. Bogotá, Bogotá, Colombia: Official Gazette.
Hayner, P. (2008). Verdades Innombrables. México: Fondo de Cultura Económica.
Presidency of the Republic (April 5, 2017). Decree 588 of 2017. 2017, Bogotá, Colombia.
[1] Student of Politics and Spanish at the University of Bristol, England
[2] University Professor in Public Law and Transitional Justice, Associate Judge of the Section of Absence of Recognition in the Special Jurisdiction for Peace
[3]https://www.elespectador.com/colombia-20/informe-final-comision-de-la-verdad/comision-de-la-verdad-recomendaciones-del-informe-final-no-son-obligatorias-para-el-estado/#:~:text=%C2%BFPor%20qu%C3%A9%20las%20recomendaciones%20no,ocurrido%20en%20el%20conflicto%20armado.
To cite: Francisco Julio Taborda Ocampo, “Does the fact that the Truth Commission was extrajudicial make its recommendations non-binding?” in Revista Derecho del Estado, September 9th, 2022. Available here: https://blogrevistaderechoestado.uexternado.edu.co/2022/09/09/does-the-fact-that-the-truth-commission-was-extrajudicial-make-its-recommendations-non-binding/