COLOMBIA OIL COMPANIES AND HUMAN RIGHTS
For decades, transnational oil companies have operated in Colombia in partnership with the state-owned Ecopetrol. The situation has been fraught with danger as guerrillas have essentially declared war against the companies, causing significant loss of life and property. This in turn has driven the companies into the arms of the Colombian military, one of the few in the hemisphere still engaged in a pattern of gross violations of human rights. In the attached letters, Human Rights Watch calls on transnational oil companies operating in Colombia to adopt policies that will prevent human rights violations by military units defending their interests.
In January 1998, the U.S. State Department characterized the human rights record of Colombia in 1997 as “poor,” finding government forces responsible for extrajudicial executions, “disappearances,” and torture. Moreover, the report highlighted the military’s sometimes partnership with deadly paramilitary groups, armed civilian groups responsible for the majority of political assassinations and massacres taking place in Colombia today.
The Government took no significant action to restrain these powerful paramilitary groups. The public security forces’ relations with paramilitary groups varied considerably, ranging from noncooperation, to turning a blind eye to paramilitary activities, to some instances of active collaboration. There was no credible evidence of any sustained military action to constrain the paramilitary groups. While the president announced on December 1, 1997 a series of measures to combat paramilitary forces, including a task force to hunt down their leaders, these measures had not been implemented by year’s end.1
The State Department has used equally, if not more forceful terms on condemnation for government-sponsored human rights abuses over the past several years. In 1995, the State Department’s annual summary stated, “The police and the armed forces were responsible for widespread human rights abuse.”2 Nonetheless, there is no evidence that the oil companies took human rights into consideration when, in 1996, they signed formal agreements with the Defense Ministry and National Police to assign army brigades and police sections to defend their operations. In Arauca, where Occidental Petroleum’s Colombian subsidiary is based, the army unit that would become the company’s partner in security already had a reputation for serious human rights abuses, including the massacre of ten civilians in Puerto Lleras in 1994. In Casanare, where British Petroleum operates, the army was alleged to have killed at least two and threatened and harassed others in the aftermath of protests against the company in 1995. Yet neither company added any component of their security agreements with the Defense Ministry, worth millions of dollars annually, insisting on compliance with human rights.
While these companies are private actors not bound by international human rights treaties, Human Rights Watch believes they nonetheless have a moral duty to avoid complicity in human rights violations by state agents. The principle assignment of the brigades stationed in Arauca and Casanare is to rout guerrillas so that oil operations may continue unimpeded. Whatever the companies’ payment arrangement with the Colombian government, their reliance on the security forces for security gives rise to a moral responsibility for any abuses those units may carry out.
Human Rights Watch does not question the companies’ legitimate need for protection of personnel and property. Nor do we challenge the right of the companies to call on state security forces to provide such protection. Indeed, the state has a responsibility to provide security, but must do so within Colombia’s obligations under international human rights law.
The attached letters to British Petroleum, Occidental Petroleum, their partners, and the Colombian government include the results of our investigation into human rights violations attributed to the army units protecting oil installations. Our studies in Casanare and Arauca found several unresolved cases of possible extrajudicial executions by soldiers, as well as allegations of army tolerance of violent paramilitary activity in Casanare. A steady pattern of threats, murder, and abduction by guerrillas forms the constant backdrop to these events. The letters include detailed recommendations to the companies to prevent corporate complicity with human rights violations. By virtue of their influence in Colombia and their participation in joint ventures in which the government is a principal stakeholder, the oil companies are well placed to convey to government and military officials at the national, state, and local level their concern about human rights violations by Colombia’s military.
Our letter to the government of President Ernesto Samper calls for investigation into the killings that may have been committed by military units operating in those areas and prosecution and punishment of those responsible.
Background
Oil production has become a source of economic good news in Colombia, as high grade sources of petroleum are increasingly found and made to produce. The common mode of oil exploration and extraction in Colombia involves the use of associational contracts, or joint ventures, between Ecopetrol, Colombia’s state oil company, and foreign and/or domestic private companies. As part of the arrangement, one of the companies acts as operator, and takes charge of daily business. Though the operator is most in touch with daily needs of the associational contract, all members jointly make important decisions. The associational contracts in Colombia’s northeastern departments of Arauca and Casanare together account for nearly 60 percent of the nation’s oil production.
Our investigation was prompted by reports of alleged human rights violations linked to oil operations in the area of these associational contracts, particularly in Casanare.
In Arauca Department, the Colombian subsidiary of Occidental Oil and Gas Corporation (Oxy) has partnered with Royal Dutch/Shell and Ecopetrol to form the Cravo Norte Associational Contract.3 Cravo Norte, relying on Oxy as operator, has pumped oil from Arauca at the rate of more than 183,000 barrels per day since 1985. Cravo Norte’s Caño Limón fields produced more oil than any other until Casanare Department’s Cusiana-Cupiagua fields went online. In Casanare, British Petroleum (BP), together with Total and Triton Energy and others, have teamed with Ecopetrol in a number of associational contracts to exploit the gigantic Cusiana-Cupiagua fields.4
Guerrillas in Arauca and Casanare protest current methods of oil exploration on the grounds that transnational companies should not reap the profits of Colombia’s oil and that Ecopetrol represents an illegitimate government.Insurgents have repeatedly bombed and attacked oil facilities and transit infrastructure, kidnaping or killing dozens of oil industry workers in violation of international humanitarian law. Guerrilla extortion of oil companies is also common.
The Colombian government and transnational oil companies have enlisted Colombia’s security forces — the Army and National Police primarily — to counter the guerrilla threat. For years, oil companies have provided goods and services to the forces protecting them. More recently, in part as a result of an increased threat to oil production and personnel, transnational companies have entered into contractual “collaborative agreements” through which they make direct cash and in-kind payments to Colombian military and police forces in exchange for direct protection. Following negative publicity related to the military’s human rights record, the companies entered into negotiations with the government for a new security arrangement. In face-to-face meetings, and in the attached letters, we have strongly urged the companies to incorporate into their agreements measures that would prevent a situation in which military forces defending their interests engage in human rights violations.
Under the collaborative agreements, the National Police performs a stationary and principally defensive mission, guarding wells and production facilities. It is the Army that has undertaken the more aggressive role of pursuing the insurgents.
BP, operating in Casanare since 1986, now invests in Colombia more than any other foreign corporation.5 BP serves as the operator for various oil associational contracts, of which Ecopetrol and other private companies are members. As associational contract operator, BP has entered into informal and formal relationships with both the Colombian military and National Police to provide protection to associational contract property and operations.6
Oil companies by law provide considerable royalties to local and national funds. In fact, public coffers receive twenty percent of oil production in this manner. Royalties are paid in-kind to Ecopetrol at the well head.7 Ecopetrol in turn transfers receipts to the federal government, which oversees payments to municipal, departmental, and federal funds.8 In 1995 and 1996, Cusiana oil production resulted in royalty contributions to Casanare of approximately $180 million.9
In addition, since February 1991 Colombian law has compelled oil and mining companies to pay to the Colombian treasury —on a per barrel basis— the so-called Special Contribution for the Reestablishment of Public Order (Contribución Especial para el Restablecimiento del Orden Público, commonly known as the “war tax”) to help finance the Colombian government’s counterinsurgency efforts. Total oil industry contributions to the war tax werescheduled to reach approximately $250 million in 1996.10 In addition to the war tax, the Colombian government imposed on May 17, 1996, a one-time 1.5 percent surtax on oil to raise $400 million to pay for additional security for oil installations.
BP and its partners’ cooperation with the army dates back to at least June 1993, when the Cusiana-Cupiagua oil fields became ready to ship oil and the army deployed troops to protect the oil fields. Since then, the need to protect oil installations has grown dramatically. Gen. Harold Bedoya, then commander of the Colombian armed forces, estimated in late 1996 that half of Colombia’s 120,000 troops were engaged full-time in protecting oil and mining installations.11
In 1995 BP signed on behalf of its associational contracts three-year collaborative agreements with the Colombian Defense Ministry. The agreements are worth some $54 million, in cash and in-kind payments made to the army, with more than $11 million of this amount provided by BP and the rest by its associational partners. The contents of the agreement are not publicly known in Colombia, even though there is a legitimate interest of the public at large to know its contents, since the agreement may have an impact on human rights. BP provided Human Rights Watch a copy of the agreement at our request. We commend this openness and urge the company to extend this transparency to the public at large, which has an interest in the agreements between public security forces and oil companies. The contract provides for a army presence throughout the petroleum zones and along Casanare’s by-ways.12 The document indicates that the army commander will determine troop strength necessary to cover the areas contemplated by the contract. The agreement calls for BP to provide security and communications equipment, administration materials, “information,” engineering and health services; helicopter time and land transport.
A separate agreement governs BP’s relations with the National Police units assigned to protect oil rigs.
Like BP in Casanare, Oxy operates an associational contract in Arauca department. Oxy has explored and extracted oil in Colombia for sixteen years. Like BP, Oxy is required to make obligatory payments to various levels of the Colombian state, including royalties and the war tax. In September 1996, Oxy formalized a voluntary assistance arrangement in which it previously had engaged with the Colombian military. The new written collaborative agreement, dated September 12, 1996, contemplates one-year disbursal of in-kind and cash payments totaling some $2 million.13 In-kind assistance includes vehicles, health services and instruments, installations, troop transport, and helicopter flights. Cash payments are earmarked for security equipment, administration, communication, personal services, welfare upkeep, and a “network of informants.” The contracted payments go toward troops operating at the Caño Limón Production Field, now of the XVIII Brigade.14 Oxy declined to provide us a copy of the agreement on the grounds that it could not do so without permission of the other members of the Cravo Norte Associational Contract, although the agreement itself does not include that prohibition. The company did allow us to review the document. As noted above, we believe it is in the public interest to allow the maximum transparency possible in agreements between the oil companies and the Ministry of Defense.
Oxy also makes direct contributions to the National Police, although without a written agreement.
Following negative international attention to these agreements, in late 1997 the oil companies entered into negotiations with the government over their payments to the security forces for security. Representatives of Oxy and BP told Human Rights Watch their new agreements devolve upon Ecopetrol responsibility for security arrangements. While such an arrangement puts some distance between the private companies and the Colombian security forces in contractual terms, on the ground the facts will remain the same. The companies will continue relying on a military institution with an alarming human rights reputation to protect their interests in Colombia.
Oil companies that deploy security forces to protect their installations and personnel bear responsibility for the actions those forces undertake. In Arauca and Casanare, the army has dedicated entire brigades (the XVIIIth in Arauca and the XVIth in Casanare) to protecting oil production. The companies cannot ignore the human rights violations committed by those units; indeed the companies’ dependence on the army and police for their survival gives them a tremendous moral responsibility. In both departments, the army units — albeit to different degrees — have been allegedly involved in extrajudicial executions which have not been resolved.
Human Rights Watch Recommendations
In our letters to the oil companies, we provide detailed recommendations intended to prevent further human rights violations by military forces protecting their interests in Colombia. Our recommendations also include actions oil companies should take if such abuses occur. These recommendations include the following:
· The companies should insert a clause into any security agreement signed with the government or any state entity that requires, as a condition of contract, that state security forces operating in the area of company installations conform to the human rights obligations the government has assumed under the International Covenant on Civil and Political Rights, the American Convention on Human Rights, as well as other international human rights and humanitarian norms.
· The companies’ security agreements with state entities should be made public with the sole exception of operative details that could jeopardize individuals' lives.
· The companies should insist on screening the military and police who are assigned for their protection. In consultation with the Defense Ministry and civilian government agencies in charge with investigating human rights violations (the Fiscalía General de la Nación, the Defensoría del Pueblo, and the Procuraduría General de la República) as well as non-governmental human rights organizations, the companies should seek to ensure that no soldier or police agent credibly implicated in human rights abuse be engaged in their protection.
· Careful background checks should also be undertaken to ensure that former police or army officers who work as private contractors or part of company security staff have no history of human rights abuse or paramilitary involvement.
· The companies must make absolutely clear to the police and military defending them — as well as to company staff and sub-contracted personnel — that human rights violations will not be tolerated, and that the companies will be the first to press for investigation and prosecution if any abuses occur.
· Whenever credible allegations of human rights abuses surface, the companies should insist that the soldiers and officer implicated be immediately suspended and the appropriate internal and criminal investigations launched.
· The companies should actively monitor the status of the investigations and press for resolution of the cases. If the investigations or prosecutions are stalled, the companies should publicly condemn the failure to conduct or complete the investigations.
· The companies’ assistance should be audited to ensure that the aid is, in fact, non-lethal. Those audits should be made public.
1 U.S. Department of State, Country Reports on Human Rights Practices for 1997, www./global/human_rights/1997_hrp_report/97hrp_report_ara.html] 2 U.S. Department of State, Country Reports on Human Rights Practices for 1995 (Washington: U.S. Government Printing Office, 1996), p. 362.3 On February 9, 1998, Royal Dutch/Shell announced that it would be selling its stake in the Cravo Norte Associational Contract. See: “Shell Pulls Out of Colombia’s Caño Limón Field,” Platt’s Energy Wire, February 9, 1998.
4 On February 2, 1998, Triton Energy announced that it had sold its stake in the Ocensa pipeline. See: “U.S. Triton Sells Colombian Pipeline Stake for $100 Million,” Platt’s Energy Wire, February 2, 1998. The company announced that it was considering selling its stake in the Cusiana-Cupiagua fields on March 30, 1998. See: “Triton Energy to Study Farm-Outs in Thailand, Colombia,” Platt’s Energy Wire, March 30, 1998.
5 Karl Penhaul, “BP Unit to Invest $600 Million in Colombia in 1997,” Reuter, December 13, 1996.
6 See Collaboration Agreement (Acuerdo de Colaboración) between BP Exploration (Colombia) and the Colombian Ministry of Defense-National Army, November 7, 1995; and Collaboration Agreement between BP Exploration (Colombia) and the Colombian National Police, March 12, 1997.
7 Human Rights Watch interview with Stephen T. Newton, president of Occidental de Colombia, Inc., January 31, 1997.
8 Ecopetrol, et al., Industria Petrolera en Colombia Contratos de Asociación (undated brochure), p. 15. The national government collects about eight percent, some of which is distributed to port facilities, some to non-oil-producing areas; 2.5% goes to the department; and about 9.5% goes to the municipalities from under whose territory the oil is extracted. Ibid.; Human Rights Watch interview with Stephen T. Newton, president of Occidental de Colombia, Inc., January 31, 1997.
9 British Petroleum, “BP in Colombia: a refutation of recent allegations” (company document), February 3, 1997.
10 “Oil Companies Wary of Peace Offer from Colombia Guerrillas,” Latin American Energy Alert, September 20, 1996.
11 “Leftist Rebels Shut Down Key Colombian Pipeline,” Reuter, September 25, 1996.
12 Collaborative Agreement between BP Exploration (Colombia) and Colombian Ministry of Defense-National Army, November 7, 1995, cl. 9.
13 Human Rights Watch interview with Stephen T. Newton, president of Occidental de Colombia, Inc., January 31, 1997.
14 Collaborative Agreement between Occidental de Colombia, Inc. and Colombian Ministry of Defense-National Army, September 12, 1996.