David Tolbert: "Colombia Should Take Advantage of the Momentum and Create a Truth Commission"

Ahead of the conference ICTJ and the Kofi Annan Foundation are hosting next Wednesday in Bogotá, ICTJ President David Tolbert spoke to leading Colombian news magazine Revista Semana about plans for official truth seeking in Colombia on violations committed during the country’s internal armed conflict. The interview covered some of the opportunities and challenges that a future official truth commission might face – and considered why the search for truth is so important to victims and Colombian society as whole.

Semana: Why is it important for Colombia to have a truth commission?

David Tolbert: Truth commissions can play an important role in societies grappling with mass human rights violations and abuses. They help to establish a historical record of what happened, examine the root causes of violations, make important recommendations for reforms, and provide evidence and material for other transitional justice processes. They also provide some victims with the opportunity to tell what happened to them and their loved ones in an official setting. They can also open a unique opportunity for the entire society to question the values, rights, and rules that should be respected and defended.

David Tolbert: In Colombia, there have already been a number of official and non-official truth-seeking and historic memory initiatives. These include investigations by the National Center for Historic Memory, a myriad of initiatives led by civil society and victims groups across the country, certain official commissions of inquiry, as well as in some instances proceedings of the Justice and Peace process and other court cases. These initiatives are important in and of themselves; they will also provide significant material and information for a future official national truth commission. However, there are still serious issues that have not been addressed, and Colombia needs to address this “truth deficit.”

A truth commission would be at the center of a broader truth-seeking process in the country that could focus especially on issues that have not been adequately addressed yet. One such issue is the need to establish collective and institutional responsibilities in connection to serious human rights violations, including by political and economic actors. A truth commission can make an important contribution in this regard. Other aspects of the truth deficit, especially the lack of access to archives (especially from the security sector) and the search for victims of enforced disappearances, would not be solved by a truth commission, requiring a different approach.

S: What are the main challenges truth commissions face?

DT: There are a number of challenges that a truth commission faces. In the context of the situation in Colombia, two key issues come to the fore. First, there is the question of legitimacy. For a truth commission to be perceived as legitimate, experience shows that it needs to engage people across all of society. If a truth commission is only shaped by the negotiating parties as a way to satisfy their own interests—as has happened disastrously in Nepal, for instance—the commission is very likely to fail. For Colombia, this means that a truth commission should involve those individuals and groups who have not engaged in truth-seeking efforts yet, in order to create a truly national and public dialogue. If it does not foster such a dialogue, the commission is unlikely to achieve lasting results. It will simply be writing the story of the parties to the peace agreement, not of society as a whole.
Experience shows that another key element to ensure a truth commission’s legitimacy is the selection and quality of its commissioners. If the commissioners are seen as credible, the commission will have a strong foundation; otherwise, failure may ensue. In our experience, it is important that commissioners are widely recognized by society as independent, impartial, respected, and committed both to the defense of human rights and the mandate of the truth commission. The selection process also needs to be transparent and trustworthy in order to strengthen the commission’s legitimacy.

The second critical challenge is managing expectations. Truth commissions are often burdened with unrealistic expectations that go far beyond what they can achieve. Creating the expectation among victims that a truth commission will address all of their demands will inevitably lead to frustration and despair. Similarly, suggesting that such a body can solve all of a country’s problems will only make it a source of disappointment. In practical terms, this points to keeping a truth commission focused on key objectives, rather than on a wide range of goals. The better approach is for a truth commission to have very clear and realistic goals.

Unfortunately, in recent years, we have witnessed the mandates of truth commissions expand to cover a growing list of functions and issues. While the early truth commissions had a narrow focus on fact finding, as in Argentina and Chile, whose mandates focused on investigating the disappeared, more recent truth commissions, like Tunisia’s recently established Truth and Dignity Commission, incorporate a wider variety of tasks, such as socio-historical analysis, investigation of economic crimes, arbitration, case referrals to special criminal chambers, policy proposals, and reconciliation efforts. In Colombia, where there is a tendency to create complex legislation and institutional bodies, this could become a real challenge and inadvertently undermine the effort.

Another challenge for the country is dealing with a conflict that has been ongoing for nearly 50 years. There is a difficult balance to maintain: in order to be legitimate, the mandate of the truth commission should reflect the real demands of Colombians; but at the same time it must be executable and completed within a reasonable amount of time. Thus, creative ways to balance these objectives should be high on the agenda.

S: How would a truth commission benefit victims of the conflict in Colombia?

DT: Victims are at the heart of the purpose and work of a truth commission. In addition to being a primary source of information for the commission through their testimonies, victims should be protected, acknowledged, and empowered by the commission. Even if it is impossible to uncover the truth about each and every violation that took place during the armed conflict, the acknowledgment of victims is an essential and fundamental contribution that a truth commission can make towards a long-lasting peace.

S: Some people believe that truth commissions provide perpetrators with impunity. How could this mindset be changed?

DT: Truth commissions cannot and should not replace criminal justice measures. Further, a truth commission is not a transactional process whereby participation in the process is somehow traded for immunity from judicial punishments or other benefits. Because it is not a judicial mechanism, a truth commission cannot prosecute or establish the criminal responsibilities of individual perpetrators. However, they can contribute to judicial processes and reparations mechanisms by identifying collective responsibilities, criminal patterns, and root causes of conflict as well as discovering important evidence and material related to specific crimes.

S: Taking into account experiences from other countries, how long would it take for a truth commission to be implemented in Colombia, and what will it look like?

DT: As I noted earlier, over time truth commission mandates have become more and more complex. These bodies have been asked to investigate an ever-wider range of violations. At the same time they often are not provided with the resources needed to conduct the work required to fulfil their mandates. Kenya’s Truth, Justice and Reconciliation Commission is an example: the commission’s mandate was very ambitious, cast in detailed legislation that demanded a full rendering of a complex history and a litany of crimes as well as a wide array of violations that had occurred over more than 45 years. Sound familiar? Kenya’s unrealistic and extremely detailed mandate, combined with a deeply flawed selection of commissioners, resulted in paralysis in the commission and a less-than-satisfactory result.

For a different comparison, let’s look at Guatemala’s Historical Clarification Commission (CEH). Its mandate, which came out of the country’s 1996 peace negotiations, was very limited, leading to criticism from human rights advocates and victims groups, which, in turn, lowered public expectations for its work. Yet, due in part to the selection of excellent commissioners, the commission turned into a success. The commissioners enjoyed credibility and legitimacy, and they were open to talking to the social groups involved in the process. Imbued with their mission, they interpreted their mandate in order to make it a meaningful process. As a result of this credibility, the commission was able to build on the mandate and make an impact with its work, and its report.

It is worth highlighting that the current favorable political and social circumstances in Colombia provide a good basis for reaching a peace agreement, but for sustainable peace to take hold, justice will need to play a significant role, including a robust truth-seeking process. Thus, it is important to seize the moment and not miss the opportunity to establish a solid truth commission that has clear objectives, while avoiding the temptation to overcomplicate the mandate and design of the commission. If the truth commission takes too long to implement, it runs the risk of frustrating victims’ expectations and disappointing Colombian society as a whole.

S: What are the most serious problems of transitional justice in Colombia? What can be done to address them?

DT: While Colombia has significant experience of implementing transitional justice measures, it needs to reflect on these experiences and assess their impact. These processes include the Justice and Peace law, the former National Commission for Reparation and Reconciliation, the Historical Memory Center, the Victims’ Law (1448), and Law 1424. Such a reflection would assist the country in ensuring that it does not simply repeat its previous efforts (or “reinvent the same wheel”). Thus, a rigorous and constructive analysis of previous experiences would help to ensure that the country addresses the most serious issues it faces and that it builds on previous experiences.

We have learned from other contexts that there is always room for improvement in the coordination among state institutions that have responsibilities in the implementation of transitional justice measures. Without clear communication, information sharing, and joint planning, there is the risk of even the best and most committed efforts going astray. Colombia is a large country with complex governing structures, at the national and local and regional level, with varying capacities. Thus, coordination and communication among state institutions, as well as building capacity where required, are critical to achieve the impact that government and society alike are seeking.

S: What message does Kofi Annan bring to Colombia regarding the implementation of a truth commission in the country?

DT: Kofi Annan, of course, is one of the most widely respected international figures in the world today. There is no one more experienced in these matters. He is visiting Colombia to address the conference our organizations are cohosting on truth commissions and peace processes.

Since 2013, ICTJ and the Kofi Annan Foundation have worked together to examine the interplay of peace negotiations and truth seeking in the aftermath of conflict. Mr. Annan has been an active participant in those discussions. In this regard, it is important to note that more truth commissions have been created in recent years through peace agreements than at any other time in history, and our organizations have worked closely on analyzing the issues that have emerged in respect to these particular truth commissions. We have had extensive consultations with some of the world’s leading experts on peace processes and transitional justice, and we are sharing our findings with countries like Colombia that are grappling with these issues. If a Colombian truth commission is to live up to the high expectations that Colombian society and victims have for a future commission, we believe that looking at these comparative examples will be helpful in informing the process.

Our respective organizations are honored to be able to contribute to the national reflection on how truth-seeking measures can contribute to a long-lasting peace coming out of the potential peace agreement currently being negotiated in Havana. We hope that the experiences analyzed in our joint report, “Challenging the Conventional: Can Truth Commissions Strengthen Peace Processes?,” will be helpful to Colombians while they embark on such an important public discussion. We hope that the report, the Spanish version of which will be released at the conference, will assist negotiators and Colombian society at large to construct a truth commission that has the broadest and strongest impact on society, consistent with the underlying goals of transitional justice.

View the interview published by Semana in Spanish here.