Transitional Justice Without Truth?

During his election campaign, Colombia’s new president Iván Duque announced that he would seek amendments to the peace agreement with the FARC-EP of 24 November 2016 and the ensuing unique Colombian system of Transitional Justice (TJ) (Sistema Integral de Verdad, Justicia, Reparación y No Repetición, SIVJRNR– see here for details of that system). Now, the parliamentary group of his party (Centro Democrático, CD) in the Colombian Congress has followed his words with deeds and launched a proposal for a constitutional amendment (Transitional Article 5A) (of which the government, however, was, according to its spokesperson, not aware). Under this amendment, all the TJ-organs, in particular the Truth Commission (Comisión para el Esclarecimiento de la Verdad, la Convivencia y la No Repetición) and the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP), will be denied access to confidential information affecting national security. This proposed amendment follows another change that the CD  has proposed to the procedural regime of the Special Jurisdiciton for Peace, shortly after the presidential election (still in the former Congress). Under that change, surrender of military personnel to the Special Jurisdiction for Peace would be voluntary and there would be a separate jurisdiction for the military. However, the constitutionality of this rule is very doubtful because it would undermine the constitutional TJ framework. From this perspective, it is consistent that the new government is now preparing an amendment of the Constitution itself, by denying the TJ organs access to information.

Of course, the new proposal amounts to a frontal attack on any TJ-system, because its central component is the establishment of (historical) truth and, based on this, a cultural memory. Such a cultural memory is important for any transitional society in its entirety, both for victims and perpetrators, as both groups are part of this society. But how can a proposal that practically hinders the establishment of truth and memory be reconciled with victims’ rights that the new government has repeatedly called for, in particular the right to truth? How can historical truth be established without access to the information in question? Especially if access to the information is impeded in such a broad way (by excluding any information, data, confidential documents relating to national security), so categorically (“under no circumstances or under any circumstances …”) and in an authoritarian fashion (“Ignorance [of this prohibition] … constitutes a serious offense” sanctioned by disciplinary action), with not only all public servants being covered, but also private persons exercising or having exercised a public office.

If this proposal actually becomes law (though the recent majority formation in Congress makes this unlikely), it would significantly hinder, perhaps even make impossible, the work of the Colombian Truth Commission and also the JEP (as far as the establishment of truth is concerned). What’s more, the complex Colombian TJ system may be struck a fatal blow, as this system cannot operate meaningfully without truth, which in turn requires access to the aforementioned information. Perhaps that’s the actual objective of the proposal but why then not say it openly so at least a public discussion about TJ’s future in Colombia would be possible.? (I note in passing that the proposal was leaked to the author by an international organization operating in Colombia). Be that as it may, the sheer existence of the proposal should raise concerns in the international donor community about the government’s concrete plans. It follows clearly from it that the new government is making every effort to further privilege the armed forces and thus risks eventually turning the TJ-system into a one-sided instrument against the FARC-EP. This contradicts not only the basic idea of ​​the peace agreement, but also the very concept of any transitional justice.