Background Briefing

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III.  Competing Proposals:  Requiring Effective Demobilizations vs. Trusting Paramilitary Leaders

Since the start of negotiations with paramilitaries, different groups have proposed different legal frameworks to govern the demobilization.  These have included the Colombian government’s radical proposal to provide amnesties to perpetrators of atrocities in exchange for the payment of a fee (a proposal that was withdrawn after an international and domestic outcry).26  They have also included very tough proposals, such as that of Colombian Senator Piedad Córdoba, which would offer minimal sentencing benefits to those who demobilize, would demand a complete geographical concentration of all paramilitaries before providing those benefits, and would condition benefits on confession before a truth commission.27

For the most part, however, the debate over which law will govern the demobilization process has centered on two prominent proposals.  The first is the proposal of a coalition of senators from several parties, including Senators Rafael Pardo and Gina Parody (the “Senate Proposal”).28  The second is the proposal circulated by the government in April 2004 (the “Government Proposal”).29  The government has announced that it will make public a new draft during the Cartagena Meeting on International Support for Colombia on February 3-4.30  However, on key issues this proposal is likely to be very similar to the government’s April draft.31

Interestingly, the main differences between the Government Proposal and the Senate Proposal are not related to the severity of the penalties they impose, or the generosity of the judicial benefits they provide:  both offer significant sentence reductions to paramilitaries who demobilize.32  Rather, as described below,most differences have to do with the seriousness with which the proposals address the dismantling of the paramilitary groups, which are in effect complex criminal organizations and, as such, will be difficult to eradicate once and for all.  The effective dismantling of these groups is essential if demobilization is to further prospects for a genuine peace.

The Senate Proposal, if properly implemented, would be a highly effective tool for dismantling the underlying structures of illegal armed groups.  It also reflects a concern for international legal standards on accountability and the victims’ rights to truth and reparation, a fact that has led a large number of human rights NGOs in Colombia to back the proposal.33  In contrast, the Government Proposal operates on the assumption that paramilitaries can be trusted to fully dismantle their organizations, turn over their illegal assets, cease their abuses of civilians and other criminal activities, and make reparation for their crimes. 

In meetings with Human Rights Watch, President Uribe and other Colombian government officials objected to several crucial elements of the Senate Proposal.  The following is a summary, based in part on these meetings, of key differences between the Senate Proposal and the Uribe administration’s position:

1. The Senate Proposal requires disclosure of basic information about the group’s structure, the assets it uses for illegal activities, and the location of bodies of the disappeared.

Under the Senate Proposal, for members of a group to be eligible for benefits, their leader must provide the government with a list containing basic information about each individual being demobilized (name, date of entry), as well as about the group’s structure, the assets it uses for illegal activities, and the location of bodies of the “disappeared.”34  This list would provide investigators with necessary information about the illegal armed group so that they could effectively investigate its past crimes, leadership structure, and financing streams.

This requirement is extremely important to the pursuit of justice and accountability for the atrocities committed by the illegal armed group.  It is also essential to ensure that the truth about these atrocities is uncovered, bodies are found, illegally taken assets are returned, and reparation is made to victims.  And it provides crucial information to allow the government to verify that the illegal armed group is actually dismantled.

The government’s position is that it should continue applying existing law,35 which does not require any disclosures beyond the identities of those who are demobilizing.36

2. The Senate Proposal requires taking brief statements from each individual.

Under the Senate Proposal, investigators are required to take a brief statement from each individual who wishes to receive benefits, and check those statements to determine whether further investigation is warranted.37  If after a maximum period of six months there is no indication that the individual was involved in atrocities or other serious crimes, the individual will become eligible to receive benefits including a resolution by the Attorney General’s office closing the case against him.38   If the individual does appear to be implicated in atrocities, the Attorney General’s office will open a formal investigation.39 

These preliminary investigations, like the initial group disclosures, will give the government a minimum of information concerning the group’s structure, crimes, and sources of financing, so that the government can ensure that the entire organization is dismantled and its illegal operations ended.  This information is also essential so that investigators can uncover the truth about the serious human rights and humanitarian law abuses committed by the illegal armed group, essential to satisfy the victims’ rights to truth and reparation.

 

The government objects to these preliminary investigations; instead, it would prefer to continue to provide benefits to individuals for demobilization after only a cursory check of their names against government records of existing prosecutions and convictions.40 

3. Under the Senate Proposal, final decisions are made by independent judicial authorities.

Under the Senate Proposal, final decisions concerning individuals’ eligibility for parole are made by a special court, the Tribunal for Truth, Justice and Reparation, the members of which are selected through a politically independent procedure like that used to select members of the Colombian Supreme Court.41

This aspect of the Senate Proposal is extremely important to the rule of law, in that it protects the independence of decision-makers and ensures that decisions about those who demobilize are not arbitrary, but rather follow clear and established principles.

The government does not oppose creation of a tribunal but would deny it meaningful authority. It argues that the president should have complete discretion to reject benefits extended to any individual by the tribunal. This would create uncertainty and a potential for manipulation of the process by outsiders.42  The government also would give the president authority to select all nominees for positions on the court.43 

4. The Senate Proposal conditions judicial benefits on confession, cooperation with the authorities, reparation, and turnover of illegal assets.

Under the Senate Proposal, individuals convicted of abuses will be eligible for parole (libertad condicional) after they have served two-fifths (i.e., five to ten years)of their full prison sentences.44  However, a court will grant parole only if the individual satisfies the following minimum conditions:  he must confess the facts surrounding his crimes, cooperate with the authorities, turn over his illegally obtained assets, and make reparation to his victims.45  All benefits are revocable at any time if the individual violates these conditions.46 

Through these provisions the Senate Proposal creates a necessary enforcement mechanism to ensure that the demobilized individual actually complies with certain minimum conditions in exchange for receiving benefits.  Such an enforcement mechanism is essential so that reparation to victims of atrocities is made and illegally taken assets are returned within a reasonable time after demobilization. It is also crucial to the pursuit of truth and accountability, in that it creates a real incentive for cooperation with the authorities.  And it is very important to the goal of a genuine and lasting demobilization in that it creates safeguards against the individual’s continued involvement in the operations of the illegal armed group.

The government would not require confession, cooperation with the authorities, or the turnover of illegal assets.47  Instead, the government argues that individuals convicted of atrocities should automatically be released on probation (suspensión de la pena) even if they have not satisfied any of the above conditions.

5. Under the Senate Proposal, leaders’ benefits are contingent on collective demobilization.

Under the Senate Proposal, for a leader to receive benefits, his group must do more than merely sign a peace agreement with the government: it must have also ceased hostilities, demobilized, and released its hostages.48  As a result, leaders cannot take advantage of the very generous benefits of light penalties without actually demobilizing their groups.

The government argues that the law should allow individual leaders to receive benefits even if their group has not demobilized and continues to engage in abuses and other crimes.49   The government’s position would create a serious risk that paramilitary and guerrilla leaders—including murderers, torturers, and kidnappers— will be able to receive benefits under the law without their group ever having to deliver a real demobilization in exchange for those benefits. It would, in short, allow such groups to continue to operate and continue to commit serious abuses.

6. The Senate Proposal does not allow perpetrators of serious violations of human rights and humanitarian law to cut short the time-frames for investigation of their crimes or to reduce their sentences to less than five years.

The Senate Proposal does not allow perpetrators of atrocities to use the Colombian formal plea bargaining system (sentencia anticipada) to cut short the time-frames for investigation of their crimes, or to reduce sentences to less than five years.50  In this manner, the Senate proposal ensures that paramilitary abuses are fully investigated and the truth about them is uncovered.  It also guards against complete impunity for crimes against humanity.

The government would allow paramilitaries to receive additional benefits through plea bargaining. Paramilitaries who admit their involvement in atrocities would be able to automatically cut short the time-frames for their investigation and trial to a few days.  They would also be able to shorten their already reduced sentences to less than five years.   



[26] See Human Rights Watch/Americas, “Colombia’s Checkbook Impunity,” A Human Rights Watch Briefing Paper, September 22, 2003.

[27]Senator Córdoba’s proposal is available at: http://www.consejerosdepaz.org/fileadmin/MATERIAL_DDHH/ANALISIS_COYUNTURAL/ALTERNATIVIDAD_PENAL/Piedad_Cordoba_Proyecto_de_Ley_VJR.doc (retrieved January 5, 2005).

[28] Available at: http://www.rafaelpardo.com/verdad/8112516.asp (retrieved January 4, 2005).  The proposal was made public in December 2004.  However, at the government’s request, the Senators delayed the formal presentation of this proposal to the Colombian Congress.  See “Congresistas Deciden Aplazar el Proyecto de Alternatividad Penal,” El Tiempo (December 14, 2004) [online] http://eltiempo.com.co/poli/2004-12-15/ARTICULO-WEB-_NOTA_INTERIOR-1923899.html (retrieved December 15, 2004); “Listo Nuevo Proyecto Que Busca Marco Jurídico Para Grupos Irregulares,” El Espectador, December 15, 2004 [online], http://www.elespectador.com/paz/nota1.htm (retrieved December 15, 2004).

[29] Pliego de Modificaciones al Proyecto de Ley Estatutaria No.  85 de 2003- Senado, “por el cual se dictan disposiciones en procura de la reincorporación de miembros de grupos armados organizados al margen de la ley que contribuyan de manera efectiva a la consecución de la paz nacional” [online], http://www.altocomisionadoparalapaz.gov.co/hechos_paz/abr_26_04a.htm (retrieved January 5, 2005).

[30] “Gobierno Presentará Marco Legal Para Desmovilización de Paramilitares el Próximo Mes de Febrero,” El Tiempo, December 14, 2004 [online], http://eltiempo.com.co/coar/NEGOCIACION/negociacion/ARTICULO-WEB-_NOTA_INTERIOR-1923417.html (retrieved December 14, 2004).

[31] Human Rights Watch representatives learned the government’s views on the draft demobilization law through meetings with President Uribe and other Colombian government officials in late November 2004. 

[32] Both the Senate Proposal and the Government Proposal involve sentences ranging approximately between five and ten years for those who have committed atrocities.  However, unlike the Senate Proposal, the Government Proposal allows those convicted to receive additional sentence reductions and ultimately serve as little as three years.  In addition, the Senate Proposal allows only one year of the time paramilitaries spend in concentration zones to count as time served on their sentences.  Senate Proposal, Art. 46.   The Government Proposal would allow all the time paramilitaries spend concentrated to count as time served.  See Government Proposal, Art. 13.

[33] See “15 Organizaciones Sociales y de Derechos Humanos Suscriben Comunicado – ONGs respaldan proyecto de verdad, justicia y reparación,” El Tiempo, December 17, 2004, [online]

http://eltiempo.terra.com.co/hist_imp/HISTORICO_IMPRESO/poli_hist/2004-12-17/ARTICULO-WEB-NOTA_INTERIOR_HIST-1926015.html (retrieved December 18, 2004).

[34] Senate Proposal, Art. 10. 

[35]The government argues that Law 418 et seq. should continue to apply to the majority of demobilized individuals.  In its view, a new law is only necessary to govern the benefits to be provided to individuals who are being prosecuted for or have been convicted of atrocities. 

[36]Decree 3360 of 2003, Art. 1.  This decree is not clear about exactly what information is required to identify these individuals – it simply says that the group must give the government a “list of the demobilized.”

[37] Senate Proposal, Art. 25.

[38] Senate Proposal, Art. 25.  To receive benefits, the individual must also satisfy other conditions, such as turning over all his illegally obtained assets, confessing his crimes, and cooperating in the dismantlement of his illegal armed group.  See Senate Proposal, Art. 26.

[39]  Senate Proposal, Arts 23, 26. 

[40] As previously noted, the government has been narrowly applying Decree 128, which says benefits may not be provided to individuals who are already being prosecuted or have been convicted for atrocities (Art. 21). But the overwhelming majority of paramilitaries are not already named subjects of prosecutions or convictions because often the identities of the authors of paramilitary crimes are unknown.  As a result, the government’s plan would allow most of them to rapidly go into reintegration programs without ever being investigated.  Indeed, in the government’s view, the sole purpose of a new legal framework would be to provide benefits to individuals who, because they are already the subjects of prosecutions or convictions for atrocities, cannot receive benefits under existing laws.

[41]See Senate Proposal, Art. 13.

[42] If the president has the power to reject benefits he may be subjected to pressure from third parties who, because of their personal interests, want to prevent paramilitaries from disclosing certain information and therefore want to influence the provision of benefits (e.g., to punish, through the denial of benefits, those who disclose damaging information).  

[43] Under the Government Proposal, the president would submit a list of judges to serve on the special court to the Supreme Court, which could vote on only those candidates.  At any time, the president could increase the total number of judges on the court from three to five, by submitting additional names to the Supreme Court for a vote.  See Government Proposal, Art. 2.

[44] See Senate Proposal, Art. 30.

[45] Senate Proposal, Arts. 31, 33.  Individuals who have not been convicted of atrocities must satisfy similar conditions to receive the benefit of having proceedings against them closed.  See Senate Proposal, Art. 26.

[46] Senate Proposal, Art. 35.

[47] The Government Proposal states that to be set free on probation, individuals must make a “commitment” to perform acts of reparation and “positive acts” in favor of peace to be determined by a court.  These acts might, but do not necessarily, include cooperation with the authorities.  See Government Proposal, Arts. 16, 24, 29.  

[48] Senate Proposal, Arts. 9, 32.

[49]The Government Proposal specifically allows benefits to be provided on an individual basis.  See Government Proposal, Art. 17.

[50]See Senate Proposal, Arts. 30, 39(9). 


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