Rule of Law and Transitional Justice Towards a triangular learning. The case of Colombia Proceedings of the conference 12-14 november 2012 Venice, Italy EUROPEAN UNION Rule of Law and Transitional Justice Towards a triangular learning. The case of Colombia Edited by Anja Mihr SIM, Utrecht University European Inter-University Centre Deutsche Gesellschaft für for Human Rights and Democratisation Internationale Zusammenarbeit (EIUC) (GIZ) GmbH Monastery of San Nicolò Registered offices Riviera San Nicolò, 26 Bonn and Eschborn, Germany I - 30126 Venice Lido Proyecto FortalEsDer Italy Agencia GIZ-Colombia Carrera 13 no 97-51 of. 302 T: +39 041 27 20 911 Bogotá, Colombia F: +39 041 27 20 914 T: +57 1 636 11 14 [email protected] F: +57 1 636 15 52 [email protected] www.eiuc.org GIZ Represetation Brussels Leopold Plaza Rue du Trône 108 B-1050 Brussels Belgium T: +32 2 230 9150 F: +32 2 644 0823 [email protected] giz.de © 2013 by EIUC First edition: September 2013 DOI: 10.7404/EIUC.2012.01 Layout and design Corinna Greco EIUC Communications Manager www.eiuc.org Rule of Law and Transitional Justice Table of Contents Foreword 5 Anja Mihr Introduction 7 Helen Ahrens, Christian Grünhagen I. Conditions of Transitional Justice Theoretical Concepts and Empirical Research 17 1.1 Access to Justice: Overcoming Amnesty Laws in the Age of Accountability 17 Leigh Payne 1.2 Challenges for Transitional Justice in Contexts of Non-transition 26 Felipe Gomez Isa II. Transitional Justice Policies: Memory and Common Narrative 42 2.1 Beyond Transitional Justice Policies: Memory and Identity and Historical Dialogue 42 Elazar Barkan 2.2 Sur la mémoire 50 Sameh Krichah III. From a practicioner’s perspective – Rule of Law through Transitional Justice vs. 56 Impact of Transitional Justice on the Rule of Law in Colombia 3.1 Reflexiones sobre el Marco Jurídico para la Paz 56 Iván Orozco IV. From a practitioner’s perspective – Rule of Law through Transitional Justice vs. 62 Impact of Transitional Justice on the Rule of Law in Tunisia 4.1 The evolution of Transitional Justice (TJ) in Tunisia, from the revolution to today 62 Amíne Ghali 4.2 Le Droit à Réparation: Principes et Dilemmes 66 Fakter Gafsi 4.3 Justice Transitionnelle et Lutte contre la Corruption en Tunisie 67 Mohamed Ayadi 3 Rule of Law and Transitional Justice V. Transitional Justice Policies: Reparations and Compensations 73 5.1 Transformative Reparations of Massive Gross Human Rights Violations 73 Rodrigo Uprimny Yepes 5.2 Challenges of Collective Reparations: The Experience of the IACtHR 94 Diana Contreras-Garduño VI. Rule of Law through Transitional Justice vs. Impact of Transitional Justice 103 6.1 The overlapping views of Rule of Law and Transitional Justice 103 Colm Campbell 6.2 La présentation du processus d’élaboration du projet de loi sur la justice 108 transitionnelle en Tunisie Mouna Tabei VII. Governance and Rule of Law: Legal and Political Cultures in Transition Processes 112 7.1 Transitional justice, civic trust and democratic institution building 112 Anja Mihr 7.2 La relation entre justice transitionnelle et transition démocratique 122 Omar Weslati VIII. Domestic Monitoring Mechanism - between International Norms 126 and National Laws 8.1 El Proceso de ejercer observancia y control al ejercicio efectivo de los 126 derechos de las victimas: Lecciones aprendidas Patricia Luna Paredes IX. International Dimension and Requirements: Organisation of American States 134 (OAS and IACHR), European Union (EU), African Union (AU) 9.1 La Corte Constitucional colombiana frente al control de convencionalidad 134 Humberto Sierra Porto 9.2 Assessing the impact of the African Union on Transitional Justice 159 Lukas Knott X. International Context: The Rule of Law and Transitional Justice 165 10.1 Community Reparations in Morocco and the Challenge Facing 165 Outreach Policy Pierre Hazan Biographies 195 Annexes 207 Annex I Declaration of Venice 208 Annex II Acta de Venecia 211 Annex III Déclaration de Venise 215 Conference Programme 219 4 Foreword Anja Mihr This publication is the result of the three days experimental conference endeavor on the Rule of Law and Transitional Justice and the Triangular Learning between three very different actors and cases: Colombia, Tunisia and the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) in November 2012 at the European Inter-University Centre for Human Rights and Democratisation (EIUC) in Venice-Lido. Bringing actors, practitioners and academics together to discuss and assess, past and present, legal and political Transitional Justice processes in Colombia and Tunisia was already a challenge. For decades, Colombia is a conflict torn society aiming to reconcile and to establish the rule of law and more stable democratic structures. Tunisia is a young country in transition that faces similar struggles but yet, a different past and enduring struggle. Learning from each other’s past and present experiences how and by what Transitional Justice means and measures to overcome grave injustice, install reparations, compensations or memorial and install at the same time a rule of law regime, is already a challenge for each country. Yet more so, if one tries to find common denominators and ways to learn from each other and bring different actors together. Bringing in a third mediating actor, a development corporation such as the GIZ on a “neutral” ground such as EIUC, is yet another experiment which made this conference a unique and successful experience for all. Participants across sectors, governmental, non-governmental, lawyers and academics alike manifested over the course of the meetings that there are more commonalities than expected between Colombia and Tunisia. They both face seemingly reluctances, deficits as well as opportunities in the legal and political arena of their countries. Third and more neutral actors like the GIZ as well as international-regional courts like the African Court and the Inter-American Court can contribute and facilitate to this process to overcome past injustice and establish stable democratic regimes. This is where this conference publication aims at testifying the efforts and initiatives taken in the different countries. Participants were highlighting the situation in each of the respective country and compared them with other Transitional Justice processes elsewhere to see what could be best ways to enhance the rule of law in their particular situation. The conference also shows what third and neutral actors and practitioners such as GIZ and EIUC can do and how they can contribute to the rule of law during periods of transition. 5 Rule of Law and Transitional Justice The reader finds a number of chapters by conference participants reflecting about the cases of Colombia and Tunisia as well as from a general analysis of Transitional Justice elsewhere. The chapters are kept in the original language of their contributors and thus it is a tri-lingual publication in English, French and Spanish. By the time of this writing the conference had several follow ups and exchange among experts from Tunisian and Colombian governmental and non-governmental institutions. They were facilitated by the GIZ. Hence, the triangular-learning experiment has entered into its second stage in 2013 and can be taken as an example for other similar cases in the future. The Declaration of Venice (see Annex) highlights the importance of mutual exchange and cooperation in the field of Transitional Justice. This conference publication would have not been possible without the engagement and support of GIZ-offices in Bogota and their FortalesDer director Dr. Helen Ahrens and the coordinator Christian Grünhagen and the GIZ-office in Brussels and the director Prof. Horst Fischer; the EIUC and its Secretary General, Prof. Florence Benoît-Rohmer and the academic support. The conference coordinator at EIUC, Elena Politi, had been a major support to organize and facilitate this conference as did the support staff at the venue in Venice. Lenna Vromans at Utrecht University contributed to the realization of this publication. Without the engagement of all participants from different disciplines and sectors this triangular learning would have never happened. They are all mentioned in this documentation. Thanks to all of them for their contributions and efforts. 6 Introduction Helen Ahrens, Christian Grünhagen Relevance of the conference from the perspective of the program “Strengthening the Rule of Law (FortalEsDer)”, Colombia The concept of Transitional Justice (TJ) is as much a globally acute as a complex one. It is demanded and discussed primarily in societies that have experienced a series of gross Human Rights violations in their recent past. In order for society to overcome the deep fractions and mistrust caused by these, the concept of TJ came up. The special Rule of Law Unit of the UN establishes that “[t]he notion of transnational justice comprises the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation (UN Security Council 2004, parr. 8). In Colombia, TJ is one of the most discussed topics in both politics and justice. Because of its ongoing and complex armed conflict it is destined to be one of the most interesting and extensive cases of TJ processes experienced so far. The State itself is working on and implementing measures in every field of TJ and is simultaneously working on the strengthening of the Rule of Law. In this context a cooperation with Germany takes place through the GIZ-project “FortalEsDer” (Strengthening the Rule of Law). The objective of FortalEsDer is that the judiciary and supervisory authorities (General State Attorney and Office of Ombudsman; Procuraduria General de la Nación y Defensoría del Pueblo) apply law according to their capacity as peace and confidence building guarantors in order to protect citizens against unlawful administrative action.