Colombian government and FARC negotiators made a big announcement on June 4, at the end of their 37th round of talks in Havana. They had come to agreement on the nature and mandate of a Truth Commission, or “Commission for the Clarification of Truth, Coexistence, and Non-Repetition,” that would be charged with “clarifying and making known the truth about what happened in the conflict.”
This is the first point of agreement reached within the “Victims” agenda point, which the negotiators have been discussing for about a year. The announcement gives the peace process a badly needed shot of momentum at a time when, following the end of the FARC’s unilateral cease-fire, the pace of fighting has quickened.
According to the lengthy summary document both sides released on June 4, the “Clarification” Commission will have 11 members, 3 of whom can be foreigners. Upon the signing of a final peace accord, the Commission will have six months to establish itself, and the commissioners will have three years to perform their work. This is an appropriately long amount of time for a complex and politically charged task: the commissioners will not be rushed.
The Commission’s final report will not name the worst individual perpetrators. It will be limited to identifying “collective responsibilities.” The text explains that the commissioners will be directed to report on:
“The collective responsibilities of the State, including of the Government, and the other public powers, of the FARC-EP, of the paramilitaries, as well as of any other group, organization or institution, national or international, that has had any participation in the conflict, for the practices and acts referred to above.”
There will be no “naming names.” That will be the work of whatever transitional justice body that the negotiators agree to establish, which will operate independently of the Truth Commission.
The Commission’s report, though, can explore the responsibilities of a wide range of institutions and “collectivities,” including private corporations and foreign governments. Presumably, it could name the military units or FARC fronts that exhibited a pattern of committing the most serious violations.
An existing body, the Center for Historical Memory originally set up by the 2005 “Justice and Peace Law,” has already done this, to some extent, in its numerous published reports. One imagines that the “Clarification Commission” would have to be more explicit, detailed, and systematic than its predecessor in its naming of responsible institutions and groups.
The Commission will not recommend punishments, nor can it share evidence with the judicial system. The text reads:
“The Commission will be an extra-judicial mechanism. In this sense, its activities will not have a judicial character, nor will they be able to implicate criminal accusation of those who appear before it. The information that the Commission receives or produces cannot be transferred by it to judicial authorities to be used with the end of attributing responsibilities in judicial processes or to have value as evidence; nor may the judicial authorities be able to require it.”
This will make it far easier for the Commission to hear confessions from those who might not wish to incriminate themselves, or to hear testimonies from witnesses who might otherwise fear retribution. The disconnect from criminal justice is not an amnesty, as nothing stops the judiciary (or a future transitional justice body) from acting on its own against individuals. But in order to do so, this judicial body will have to cover ground very similar to that covered by the Truth Commission.
The Commission will make recommendations—though it’s not clear about what. The text reads:
“A committee of follow-up and monitoring of the implementation of the Commission’s recommendations will be created, and will begin to function once the final report has been published.”
The negotiators’ summary document makes little mention of the “recommendations” that the Commission is expected to produce. Will these be institutional reforms, such as changes to the security forces? Mechanisms to hold the worst violators accountable, like suggested confinement conditions? Methods of providing reparations to victims?
For now at least, this is not clear. It’s worth noting that the 2013 report of Colombia’s Center for Historical Memory already issued a detailed list of public policy recommendations, few of which have yet been taken up.