Legacy of Conflict: Businesses Grapple with Complex Transitional Justice in Colombia
Download a PDF of this articleSince the 2000s, Colombia’s peace processes have aimed to demobilize various illegal armed groups, garnering international attention due to human rights concerns arising from the conflict. These efforts have significantly impacted the political landscape, shaping and ending the careers of prominent figures. The demobilization of right-wing paramilitaries in the early 2000s followed a decade later by the disarmament of the left-wing FARC guerrillas stand as stark examples of this dynamic. Today, a complex transitional justice system grapples with the legacy of the conflict, seeking accountability and reconciliation.
Corporations have historically kept this dynamic at arm’s length. To be sure, safety concerns and human rights protection have been a major issue for companies operating in Colombia for decades. Many analysts suspect that major multinational corporations have paid monies to illegal armed groups in other to obtain the necessary safe-conducts that enabled business continuity – a perception which is fueled by the fact that there are 16,000 testimonies that may involve civilian parties in connection to armed conflict-related activities.[1] Considering that the U.S. government lists many of the illegal armed groups that operated in Colombia as terrorist groups, it is quite daunting to see such high volume of civilian involvement with sanctioned entities. But, other than the internationally famous Chiquita Brands case,[2] companies have faced little scrutiny.
That is likely to change, as a shift in focus for transitional justice is forthcoming, changing from the direct protagonists and perpetrators of violence to the ‘enablers’ and financers of such violence. As such, Colombian authorities’ focus on primarily investigating armed groups and former combatants has shifted.
Transitional justice mechanisms like the JEP (Special Jurisdiction for Peace) are now calling on companies and individuals to answer for their actions[3], as seen in the recent case involving a major Colombian oil company allegedly linked to a massacre in Barrancabermeja in May 1998.[4]
This shift becomes evident with the support of the highest executive level; President Gustavo Petro has publicly reiterated that “the truth is the basis of peace” and Justice must have effective mechanisms to find it, referring to transitional justice.[5]
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Are Businesses Operating in Conflict Zones Adequately Prepared for the Legal and Reputational Risks They Face?
Companies operating in post-conflict territories face three major risk categories that demand expert attention: criminal risk, civil risk, and reputational risk. Criminal risk arises from the multiple, overlapping justice systems that can hold companies and private individuals accountable,[6] while civil risk appears from the interpretation of transitional justice principles to allow legal entities, individuals, and third parties to seek legal recourse against companies.[7] Reputational risk emerges from public revelations of accusations and evidence in judicial proceedings, which can severely damage a company’s reputation.
The global market is responding with stricter regulations like the EU’s Conflict Minerals Regulation. Highly regulated industries must have robust due diligence in place to adequately assess their human rights-related risk exposures.
The global market is responding with stricter regulations like the EU’s Conflict Minerals Regulation (EU 2017/2302).[8] However, many industries – agriculture, mining, hydrocarbons, infrastructure, energy, and manufacturing – operate in conflict zones or their vicinity. These sectors require robust due diligence systems to assess their own risk exposure to potential links to human rights abuses.
Our Key Takeaways
In today’s conflict-stricken landscapes, businesses hold a growing responsibility. Executives face potential liability for past transgressions, making a proactive, long-term approach crucial. This entails mapping the entire supply chain, from source to consumer, to identify potential risks at each stage. Comprehensive risk assessments should inform mitigation strategies, including sourcing from certified suppliers, conducting regular field audits, developing robust oversight mechanisms, and employing forensic research. Public disclosure of due diligence measures and risk assessment results fosters transparency and accountability. Additionally, clear communications strategies are vital to safeguard reputational assets by engaging with market actors, shareholders, and the public.
Navigating the evolving legal landscape in conflict zones like Mexico, Colombia, and Central America demands in-depth understanding of their complex justice systems and transparent communication of their potential reach and risks. By embracing these measures, businesses can operate ethically and create a more sustainable future in conflict-affected regions.
A clear communications strategy is the foundation to safeguard corporate reputation and navigate the complex and evolving legal landscape effectively and responsibly.
The complex legal framework and evolving nature of transitional justice systems in Colombia have drawn the attention of both national and international authorities seeking to address issues such as terrorism, child recruitment, extortion, and human rights violations. This heightened scrutiny underscores the importance of companies operating in this context to navigate these complex legal landscapes effectively and responsibly.
Cases like the agriculture company[i] and the French giant cement company[ii] serve as stark reminders that the risks of private sector involvement in conflict are real and present.
[1]Camila Osorio, “De Ecopetrol a Postobón: las grandes empresas señaladas por Mancuso de financiar la guerra paramilitar,” El País (May 18, 2023), https://elpais.com/america-colombia/2023-05-18/de-ecopetrol-a-postobon-las-grandes-empresas-senaladas-por-mancuso-de-financiar-la-guerra-paramilitar.html.
[2] The Empty Chair, “Exsubjefe de Ecopetrol entra a la JEP tras verdad sobre nexos paramilitares,” La Silla Vacía (January 9, 2024), https://www.lasillavacia.com/en-vivo/exsubjefe-de-ecopetrol-entra-a-la-jep-tras-verdad-sobre-nexos-paramilitares/.
[3] “Presidente Petro anuncia que presentará reforma a la justicia en 2024,” Colombia Potencia de la Vida (October 18, 2023), https://petro.presidencia.gov.co/prensa/Paginas/Presidente-Petro-anuncia-que-presentara-reforma-a-la-justicia-231018.aspx.
[4] Alejandro Jimenez Ospina, “La importancia de los terceros civiles ante la JEP,” Dejusticia (January 30, 2022), https://www.dejusticia.org/column/la-importancia-de-los-terceros-civiles-ante-la-jep/.
[5] “JEP asks the Supreme Court, Investigation Commission, Prosecutor’s Office and Attorney General’s Office to investigate the allegations made by Salvatore Mancuso,” Semana (November 17, 2023), https://www.semana.com/nacion/articulo/jep-le-pide-a-la-corte-suprema-comision-de-investigacion-fiscalia-y-procuraduria-investigar-los-senalamientos-hechos-por-salvatore-mancuso/202347/.
[6] Fabiana Di Lorenzo and Estelle Levin-Nally, “The ‘Conflict Minerals Regulation’ or the ‘Regulation on Responsible Sourcing of Minerals’: Evolving Purpose and Terminology,” Cambridge Care blog (February 22, 2021), https://www.cambridge.org/core/blog/2021/02/22/the-conflict-minerals-regulation-or-the-regulation-on-responsible-sourcing-of-minerals-evolving-purpose-and-terminology/
[7] Andy Sullivan, “Chiquita pleads guilty to Colombia terror payments,” Reuters (August 9, 2007), https://www.reuters.com/article/idUSN19289952/; and Brendan Pierson, “Chiquita settles with families of U.S. victims of Colombia’s FARC,” Reuters (February 5, 2018), https://www.reuters.com/article/idUSKBN1FQ04R/.
[8] “US Yazidis sue France’s Lafarge for aiding ISIL violence,” Al Jazeera (December 15, 2023), https://www.aljazeera.com/news/2023/12/15/yazidis-in-the-us-file-lawsuit-against-french-company-lafarge-for-aiding-is.
Jorge Del Castillo
Managing Director, Corporate Reputation
Jorge Del Castillo leads FTI Consulting’s Strategic Communications segment in Colombia. With more than 20 years of experience, he advises clients from the public, private and multilateral sectors on reputation protection and enhancement strategies, public affairs, risk mitigation and crisis management.
Juan Viana
Senior Director, Colombia Public Affairs
Juan Viana is a former high-level Colombian government official and has more than 10 years of professional consulting experience focusing on public affairs. He advises clients with interests in Colombia’s energy, oil and gas, technology and pharmaceutical sectors on communications strategies to overcome regulatory and reputation challenges.
Pablo Amaya
Managing Director, Head of Colombia Forensic Litigation Consulting
Pablo Amaya leads FTI Consulting’s Forensic and Litigation Consulting practice in Colombia and is a member of the Global Risk and Investigations Practice. With more than 12 years of reputational risk analysis and mitigation experience, he consults on a wide range of investigative and litigation support matters and focuses on the energy, infrastructure, pharmaceutical and retail sectors.
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