II. Background: Paramilitaries, Impunity, and the Justice and Peace Law

Over the last three decades, paramilitary groups allied with powerful political, military, and economic elites have ravaged much of Colombia, carrying out massacres, torture, enforced disappearances, and murders of thousands of civilians, human rights defenders, trade unionists, and local leaders; forcing hundreds of thousands to flee their homes and taking the victims' land for themselves or their accomplices.[1] While purporting to have the aim of fighting the left-wing guerrillas of the FARC and ELN, paramilitaries and their accomplices have profited immensely from drug trafficking, land takings, and a host of other criminal activities.

Over the years, Human Rights Watch has repeatedly documented a pattern in which paramilitaries have received the collaboration, support, and toleration of units of the Colombian security forces, a fact that has led many to refer to the paramilitaries as a "sixth division" of the army.[2]It has also recently become clear that numerous politicians collaborated with the paramilitaries, rigging elections through voter intimidation, fraud, and outright killings of political opponents. And many businessmen and landowners have relied on paramilitaries to secure and protect their economic interests, benefiting from the paramilitaries' displacement of civilians and other activities.

Until very recently, not only the paramilitaries, but also their accomplices, have consistently been able to avoid investigation, prosecution, and punishment. After the Attorney General's Office established, in 1995, a special Human Rights Unit to investigate and prosecute human rights crimes, the unit made significant progress on a wide range of important cases involving army and police personnel, paramilitaries, and guerrillas. However, as Human Rights Watch documented at the time, many of those cases were stalled or closed after the appointment in 2001 of Attorney General Luis Camilo Osorio, who purged the office of officials who had worked on sensitive human rights cases and sent a clear message to those who remained that efforts to prosecute human rights violations committed by army officers would not be welcome.[3]

In September 2002, the US Department of Justice announced indictments and extradition requests for two top paramilitary leaders, Carlos Castaño and Salvatore Mancuso, and a drug trafficker believed to be their ally, Juan Carlos "El Tuso" Sierra. The previous year, the US Department of State had placed the United Self-Defense Forces of Colombia (Autodefensas Unidas de Colombia, AUC) paramilitary coalition on its list of Foreign Terrorist Organizations.[4] Suddenly, commanders who had enjoyed total impunity found that they had something to fear.[5]

Castaño, then the top leader of the AUC, and others almost immediately started "peace" negotiations with the Uribe administration in the hope they could obtain a deal that would allow them to block extradition and avoid potentially lengthy prison terms in the United States for drug trafficking.[6]

On June 21, 2005, the Colombian Congress approved a law that gave paramilitary leaders almost everything they wanted. As Human Rights Watch described in its 2005 report, Smoke and Mirrors, Colombian Law 975 of 2005 (commonly known as the "Justice and Peace Law"), as drafted by the Uribe administration and approved by the Colombian Congress, was plagued with serious problems.[7] In exchange for their groups' supposed demobilization, the law offered paramilitary commanders responsible for horrific atrocities reduced sentences of five to eight years (which could be reduced further, to less than three years) that were grossly disproportionate to their crimes. Paramilitaries would not be required to fully confess their crimes, and they would suffer few consequences if they failed to fulfill their commitments to cease criminal activities and turn over illegally acquired assets. The law also drastically restricted the amount of time prosecutors had to investigate paramilitary crimes, giving them only 60 days to verify whatever the paramilitaries chose to say.[8]

The law did not even apply to all paramilitaries, but rather only to those who requested the law's benefits, usually because they were already under investigation or had been convicted for serious crimes. The Colombian government reports that 31,671 paramilitaries "demobilized" between 2003 and 2006.[9] But all this means is that these individuals participated in "demobilization" ceremonies in which many of them turned over weapons and pledged to abandon their groups and cease criminal activity. The government never established a meaningful procedure to determine whether these persons were in fact paramilitaries and not persons hired to pose as such. It never interrogated them at any length about their involvement in criminal activity, or about the atrocities they may have witnessed. If they were not already under investigation, the government simply granted them pardons for their membership in the group and allowed them to enter government-sponsored reintegration programs.[10]

In the months leading up to the approval of the Justice and Peace Law, many persons, both within Colombia and outside, including the United Nations High Commissioner for Human Rights, the Inter-American Commission for Human Rights, several U.S. senators from both sides of the aisle, and nongovernmental organizations, pointed out serious deficiencies in the law.Human Rights Watch representatives met repeatedly with President Uribe and senior Colombian officials to discuss our concerns. But none of these concerns were ever addressed with anything more than cosmetic changes. Had the law been implemented as approved, it would have contributed nearly nothing to uncovering the truth about paramilitaries' atrocities and accomplices, much less to accountability.