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	Holding businesses to account in Latin America by Nelson Camilo Sánchez Dejusticia, University of Oxford, agencies Colombia   February 2016   From Chiquita Banana financing Colombian paramilitaries to Argentinean companies supporting the country’s military regime, there is no shortage of stories where businesses have supported or influenced human rights violations. In recent weeks, however, there have been two interesting developments in Latin America in the movement to demand responsibility from economic actors that support serious human rights violations.   The first development is the Argentinean Parliament’s decision to create an “investigatory commission” to look at the complicity of economic groups with the former military dictatorship of that country. This commission, supported by the former Kirchner administration, will be headed by a president chosen by the executive and will include four representatives of the legislature and four senators, chosen by their respective bodies. Their mission will be to write a report that identifies the economic and private actors that contributed to or benefited from the dictatorship, providing economic, technical, political, logistical or other kinds of support. The report should also include proposals to create “memory, hold accountable accomplices, and consolidate and strengthen democratic institutions like legislative reforms that seek to discourage activities like those investigated.”   The second is the announcement of a future “Commission for the Clarification of Truth, Coexistence and Non-Repetition” in Colombia, to be implemented once the peace process is complete between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrilla group. Among other tasks, the Commission will have within its mandate the duty to recognize: a) the responsibility of those who participated in the conflict both directly and indirectly; b) factors and conditions that facilitated or contributed to the persistence of the conflict; and c) the phenomenon of paramilitarism, in particular its causes, origins, manifestations and financing.   These announcements are certainly good news, as the struggle for accountability of those who have committed or helped commit serious crimes during times of repression or conflict has been long and difficult. In a few cases, societies that suffered from violence have managed to undertake serious processes of clarification of the truth, recognition of victims, and the trial of those responsible. In the vast majority of these, the processes of accountability have reached the direct perpetrators, but very few have managed to include those who planned, directed and especially, those who financed or benefited economically from these crimes.   The processes of accountability have reached the direct perpetrators, but very few have managed to include those who financed or benefited economically from these crimes.These two initiatives, in spite of stemming from very distinct contexts, have come together at a very important point in time. First, the question of economic responsibility (and particularly that of businesses) continues to be an unexplored area in academic discussions. Second, although some past truth commissions have sought to confront this issue (a recent study from the University of Oxford found that at least 11 Commissions have attempted it), the lessons are varied and the results obtained in these experiences have been criticized by different academic studies—including the one from Oxford—due to the low impact these have had in holding these actors accountable.   Third, these discussions, and the mechanism of truth commissions, breathe fresh air into the experiences of strategic litigation in various parts of the world. However, such litigation has had mixed results, and the opportunities for pursuing it have narrowed, for example with civil litigation in the United States under the Alien Tort Statute (ATS), a law that allows foreigners to file civil suits in US federal courts for violations of international law. In recent years, the US Supreme Court has been limiting the reach of the ATS, in particular with respect to corporations.   The above initiatives will face both opportunities and challenges. In the case of Argentina, the initiative is accompanied by a long process of prosecution of crimes against humanity and litigation against some companies that supported the violence. Recently, an exhaustive study was published that investigated more cases of business responsibility for crimes against humanity. The report studied 25 companies, including international corporations such as FIAT, Ford Motor Company and Mercedes-Benz. Nearly 900 victims were identified in the report, 354 of whom were forcibly disappeared and 65 of whom were murdered. The majority of them were workers and ex-workers of these same companies. But the Argentinian commission also confronts challenges derived from the current political transition -- the government that enthusiastically supported these efforts is no longer in power. Additionally, as a parliamentary commission, it faces the challenge of structuring itself in a technical, independent way, and responding to a mandate that it must fulfill in a very limited timeframe.   The Colombian context is very distinct. The negotiation process of a peace agreement has yet to be finalized, and therefore, the transition has not yet occurred. The clarification process includes a very long timeframe (more than five decades of conflict) and there are many others besides economic actors to be investigated - combatants, state officials, and politicians, among others. In contrast to Argentina, the truth commission mechanism is also new in the Colombian experience and will proceed parallel to a judicial process before a specialized tribunal.   These two initiatives, although occurring simultaneously, face completely different moments in their respective country’s transition process. In Argentina the efforts to clarify the facts of the dictatorship began more than two decades ago. However, in Colombia the truth commission has been announced with the hope that a peace agreement will be reached in the near future, allowing for a comprehensive transitional justice process. Thus, due to the similarities as much as the differences, it is important to follow these two processes together to see the precedents that could be set for holding private economic actors accountable for human rights abuse.   * Nelson Camilo Sánchez is a researcher in the Center for the Study of Law, Justice, and Society (Dejusticia) and Associate Professor of Law at Universidad Nacional de Colombia.   http://dejusticiablog.com/2016/01/04/argentina-and-colombia-go-after-economic-actors-in-contexts-of-violence/ http://www.sbs.ox.ac.uk/sites/default/files/Skoll_Centre/Docs/essay-payne.pdf http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16733&LangID=E http://www.opendemocracy.net/openglobalrights/nelson-camilo-s-nchez/holding-businesses-to-account-in-latin-america
	Torture, violence and abuse poison societies by International Commission of Jurists, agencies   Time for renewed commitment to prevent torture - The Optional Protocol to the Convention against Torture, 10 years on   Torture, violence and abuse poison societies. They attack the human dignity of the victims, inflict terrible suffering on their families and erode the trust in the State. The risk of being subjected to torture and other cruel, inhuman or degrading treatment or punishment exists in all situations where persons are deprived of their liberty. No country is immune from this risk. That is why prevention is needed everywhere, at all times.   With the adoption of the Optional Protocol to the UN Convention against Torture (OPCAT) in December 2002 by the UN General Assembly, States strengthened their commitment to prevent torture and other ill-treatment of all persons deprived of their liberty. The OPCAT opens up places of detention to external and independent oversight, by complementary international and national bodies, the UN Subcommittee on Prevention of Torture (SPT) and member States’ respective National Preventive Mechanisms (NPMs).   The OPCAT entered into force on 22 June 2006 and, over the past decade, this global system of preventing torture and other forms of ill-treatment has enhanced cooperation and exchanges between governmental and non-governmental actors, NPMs and the UN, on improving the treatment of all detained persons.   Presently, 81 States from all over the world have ratified or acceded to the OPCAT, another 17 States have signed it and many more are in the process of doing so. More than 60 States have also set up their NPMs.   The OPCAT, with its proactive and solution oriented approach, has led to significant achievements in the prevention of torture worldwide. Just the fact that the SPT and NPMs have the power to access any place where persons are deprived of their liberty serves as a deterrent to abusive practices, increases transparency and promotes accountability for acts of torture and ill-treatment committed in places of detention.   Important progress can be noted in countries that have ratified the OPCAT and created an effective NPM. Thanks to the documentation of poor conditions by NPMs and the SPT, some places of detention have been closed and, in many instances, conditions of detention have improved, particularly in relation to adequate standards of health, food and housing. Abusive detention practices, such as the use of inherently degrading or painful means of restraint, invasive body searches, or solitary confinement, have been reduced.   The particular risks faced by some, more vulnerable groups, such as children, women, LGBTI persons, migrants, and persons with disabilities, have been brought to the forefront by these external and independent bodies. As a result, in certain cases measures to address these risks have been taken or are ongoing. Important changes have also been introduced in domestic legislation and policies related to the situation of persons deprived of liberty, leading to concrete improvements in severalareas, including policing, penitentiary reform, effective justice for children, and mental health.   Despite the clear progress, the first 10 years of OPCAT implementation have also revealed some challenges.   In some cases, States have delayed the establishment of their NPMs or have not engaged in a participatory process to designate these national bodies.   In certain instances, States do not fully cooperate with the SPT and NPMs, for example by not providing NPMs with adequate resources, denying them access to some places of detention and not implementing SPT and NPMs’ recommendations.   In some cases, NPMs also lack the independence and expertise required to carry out their mandate.   Preventing torture and other forms of ill-treatment requires continuous, long-term, and coordinated efforts.   It is therefore time for all States –those who have already done much and those who have yet to join the OPCAT, to invest more in this global preventive system and to renew their commitment towards the implementation of measures that can effectively protect persons deprived of their liberty from torture and other forms of ill-treatment.   Thus we call on all States to: promote the universal ratification of the OPCAT over the next 10 years and, for those States who have not yet ratified or acceded to the treaty, to do so; establish effective NPMs, if they have not yet done so, following inclusive and participatory consultations; guarantee that NPMs have the required independence, powers to access and resources; guarantee the protection of all persons interacting with the NPMs and the SPT; and engage in constructive dialogue with the SPT and NPMs and take measures to implement their recommendations to reduce the risks of torture and ill-treatment.   * Signed: Amnesty International (AI); Anti-Torture Initiative (ATI); Association for the Prevention of Torture (APT); Defence for Children International (DCI); DIGNITY-Danish Institute against Torture; Human Rights Implementation Centre at University of Bristol Law School; International Commission of Jurists (ICJ); International Detention Coalition (IDC); International Federation of Action by Christians for the Abolition of Torture (FIACAT); International Rehabilitation Council for Torture Victims (IRCT); Ludwig Boltzmann Institute of Human Rights (BIM); Mental Disability Advocacy Centre (MDAC); Penal Reform International (PRI); REDRESS; World Organisation Against Torture (OMCT) Visit the related web page
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