Colombia: Talks with paramilitary groups

The Colombian government is undertaking talks with the country's largest illegal paramilitary group, the United Self-Defense Forces of Colombia, aimed at demobilization. Human Rights Watch supports efforts to demobilize fighters and work towards ending Colombia's conflict by peaceful means as long as fundamental principles of justice and accountability for crimes against humanity, human rights violations, and war crimes are respected and illegal armed groups are demobilized in fact as well as on paper.

As a matter of principle, Human Rights Watch does not oppose amnesties or pardons for the crimes of rebellion, sedition, or crimes against the state, since the state has the right to forgive crimes against itself. Amnesties of this kind are favored by the standards adopted by nations to govern conflicts and their resolution. Indeed, Colombia's constitution allows amnesties for what are defined as "political crimes."

Human Rights Watch does oppose amnesties or pardons for those responsible for crimes against humanity, war crimes, and other serious human rights violations. These are crimes against individuals which the state has no right to forgive. These crimes merit condemnation regardless of borders or internal politics. A growing body of treaties and international laws prohibit states from granting amnesties for these violations. Colombian jurisprudence also prevents its leaders from awarding blanket amnesties absent a judicial process.

There are also powerful practical arguments against blanket amnesties. Their contribution to peace is illusory. By eroding the rule of law, they encourage further violence. In Colombia, the history on this issue is stark. Past amnesties have yielded a worsening of the conflict, a growing death toll made up primarily of civilians, and increasingly barbarous tactics used by the armed groups active throughout the country.

Ensuring that any negotiation include justice for human rights crimes is critical given the future of Colombia's conflict. Any agreement with paramilitaries will be seen as a model for future negotiations with the guerrillas. If a blanket amnesty is awarded to the paramilitaries who planned or ordered atrocities, guerrillas have all the more reason to demand impunity for their past and future crimes, believing that they can commit them and simply, at a later date, insist that these crimes be pardoned.

Impunity for human rights criminals cannot be the price of demobilization. As U.S. Secretary of State Colin Powell noted during his December 2002 visit to Colombia, the leaders and field commanders of the AUC "have much to account for, not only under U.S. law but under Colombian law as well."

Background

Carlos Castaño, a rancher, convicted murderer, and indicted drug trafficker, currently leads a large paramilitary group initially formed in the 1980s by his brother, Fidel. At that time, Fidel Castaño and his Tangüeros were linked to dozens of massacres and targeted killings in northern Colombia. Nevertheless, they negotiated a demobilization in 1991, turning in 600 guns and agreeing to stop attacks. At the time, the government had multiple arrest warrants for Fidel and his fighters in relation to serious human rights violations. However, the government never seriously pursued Fidel or his henchmen, resulting in a de facto amnesty. Both before and after the demobilization, the Colombian security forces and regional leaders maintained a close alliance with the Castaños, including helping them plan and carry out massacres and targeted killings. That alliance and the de facto amnesty resulted in effective impunity for serious human rights crimes.

Only three years after the Tangüeros demobilized, Carlos Castaño reorganized the group and renamed it the Peasant Self-Defense Group of Córdoba and Urabá (Autodefensas Unidas de Córdoba y Urabá, ACCU). In 1997, Castaño allied with other paramilitaries to launch the AUC. Currently, he claims to command at least 11,000 armed, uniformed, and trained fighters. The AUC funds its activities through drug trafficking, taxes on illegal drug production, extortion, and some voluntary contributions.

Paramilitaries are the leading violators of human rights in Colombia and have been indicted for massacres (defined in Colombia as the killing of three or more people at the same place and time), selective killings, enforced disappearances, torture, death threats, and forced displacement. Paramilitary forces continue to operate with the tolerance and often support of units within Colombia's military.

Human Rights Watch receives numerous and credible reports of joint military-paramilitary operations and the sharing of intelligence and propaganda. Throughout Colombia, paramilitaries continue to move uniformed and heavily armed troops unhindered past military installations. Mayors, municipal officials, governors, human rights groups, the public advocate's office, and even some police detachments regularly informed the appropriate authorities about credible threats by paramilitaries. Yet only rarely do military forces take effective action to stop paramilitary advances.

As of this writing, for example, the attorney general's office has thirty-nine outstanding arrest warrants against Carlos Castaño (Fidel is presumed dead). In addition, Colombian courts have returned guilty verdicts against Carlos in absentia in three cases, including the murder of presidential candidate Bernardo Jaramillo in 1990. In 2002, the United States indicted Castaño and fellow paramilitary leaders Hernán Giraldo and Salvatore Mancuso on drug trafficking charges. The AUC is also on the U.S. State Department list of foreign terrorist organizations. Many more paramilitary commanders are the subject of arrest warrants, indictments, and guilty verdicts for massacres, targeted killings, torture, death threats, and forced displacement.

A surprise announcement

In November 2002, the Colombian government confirmed that it was considering negotiations with paramilitaries. On November 29, Carlos Castaño released a letter announcing a unilateral cease fire as a gesture meant to encourage talks. Although Castaño does not represent all paramilitaries, he is an influential figure and represents thousands of fighters.

The talks present novel issues. In contrast to guerrillas, paramilitaries always defined themselves as a pro-government force even as they targeted and killed civilians, political leaders, elected officials, prosecutors, and police. Particularly delicate is the degree to which these talks will implicate active duty and high-ranking military officers who have worked with paramilitaries, helped them commit atrocities, or tolerated their activities. In addition, paramilitary leaders have also been linked to drug trafficking, and several, including Castaño, have pending extradition orders from the United States.

On January 20, the government announced that formal talks with Castaño had begun. Currently, three groups are negotiating: the ACCU, active in northwestern Colombia; the Bloque Central Bolívar and Vencedores de Arauca, active in central Colombia and the department of Arauca; and the Grupo de Alianza del Oriente, from the eastern plains. However, the most active groups, including one on Colombia's north coast, one based in the city of Medellín,and one in the eastern state of Casanare have announced that they will not take part in talks.

To facilitate talks, the government issued Decree 128, which establishes rules based on a previous law, Law 418, that authorizes the authorities to award incentives to armed groups that agree to demobilize. Incentives can include a reduction of prison sentences, financial support, and assistance to reintegrate into civilian life. However, Decree 128 stipulates that the government cannot issue incentives to individuals "who are being prosecuted or who have been found guilty of crimes" established in Colombian law or ratified treaties. This is a crucial point since it requires that individuals under investigation for serious human rights abuses be held accountable for their crimes.

In addition, Colombia is a signatory to the Rome Treaty and therefore has, in principle, accepted that the International Criminal Court (ICC) has jurisdiction over crimes against humanity that are not prosecuted effectively in Colombia. The treaty requires that Colombia cooperate with the ICC should the national justice system prove unwilling to or incapable of prosecuting crimes against humanity.

Nevertheless, in a January 12 interview with the Colombian daily El Tiempo, Justice/Interior Minister Fernando Londoño seemed to ignore these critical safeguards. In answer to a question about possible impunity for paramilitaries engaged in talks, he said, "Every [peace] process presumes this." Human Rights Watch remains concerned that, despite clear legal barriers against impunity, political decisions will be made that will lead to broad pardons being issued to infamous criminals. Far from promoting an end to the conflict, such measures only promise that it will continue to worsen albeit in the hands of repackaged or renamed combatants.

Standards

The following standards must be observed in designing a framework for talks:

1. Accountability

Regardless of whether or not there are talks, the Colombian government must break persistent links between the military and paramilitary groups. This means aggressively removing from the security forces and prosecuting through the civilian justice system officers and soldiers found to have collaborated with these illegal groups. Failing to dismantle the military-paramilitary alliance will only lead to new illegal roups forming with military complicity;
The Colombian government must require that leaders and field commanders against whom there are arrest warrants, indictments, or credible evidence of serious human rights abuses, including massacres, selective killings, torture, and forced disappearance, stand trial either in Colombia, in another country, or before the ICC. Their surrender must be a part of any deal;
Law 418 and its rules, incorporated in Decree 128, should be applied only to facilitate talks, but should not be used as a stepping stone to impunity for individuals who have committed serious human rights crimes. The suspension of arrest warrants should be strictly limited to the negotiating period;
It is critical that Colombia place the highest priority on the pursuit of the people who organized or ordered serious human rights violations. If leaders and field commanders who have committed crimes against humanity or human rights violations fail to surrender once negotiations are concluded, they should be pursued aggressively and arrested in order to stand trial;
Those paramilitaries who refuse to take part in negotiations or who leave the table should be pursued even as talks are on-going;
The Colombian government must ensure that the Attorney General's office is operating in a fair and efficient manner in assembling a body of evidence to prosecute paramilitaries responsible for crimes against humanity, war crimes, and serious human rights violations, including leaders, field commanders, and the military officers who work with them;
Given the long-standing ties between Colombia's security forces and paramilitary groups, it is critical that investigations of paramilitary crimes also, where relevant, identify the state agents who took part in or facilitated crimes. These ties should be thoroughly investigated and those responsible prosecuted and punished;
Lower-ranking paramilitaries may be offered reduced sentences or other judicial benefits if they did not take direct part in ordering or carrying out serious human rights crimes and based on their cooperation with the authorities. At the time of sentencing, the fact that a fighter was under orders or cooperated with the authorities in clarifying crimes may constitute a mitigating circumstance. Cooperation must be truthful and complete in order to qualify any paramilitary fighter for any reduced sentence;
In all cases, no benefits should be granted before the judicial process is complete and individual responsibilities are established;
Colombia should establish a Truth and Reconciliation Commission to hear cases involving alleged paramilitary crimes. This Commission should not be a substitute for justice, but rather part of a mechanism designed to promote accountability and a full accounting of serious human rights crimes;
The victims of paramilitary crimes should receive reparations, ideally from a government fund collected for that purpose;
The granting of judicial benefits to paramilitary fighters should not preclude the government from paying reparations for their crimes.

2. Demobilization

So long as paramilitaries remain armed, mobile, and able to mount offensive actions, Colombia should continue to take effective military actions against them and their leadership. The Colombian government should not enter into a cease fire with any paramilitary organization unless it ceases all offensive military operations, including abuses against civilians, and takes carefully monitored steps toward demobilization;
An effective concentration of AUC forces in a defined area apart from the civilian population and with full security guarantees should be a precondition for any deal. This means that forces should be concentrated, disarmed, and provided with full protection and support by the government. This should be at a place where there is no permanent population, and the rights of residents in neighboring areas should be protected fully by the government. The AUC should not be granted de facto government power over people or territory, as was done in the past with the so-called zona de despeje granted to the FARC-EP;
The demobilization should be supervised by the Catholic Church and an international body capable of supporting a full team in Colombia for the prolonged period necessary to ensure the process. This group should have the power to investigate and sanction non-compliance and should ensure that the Colombian people and the international community are well informed about the process;
Special programs should be developed to assist children who fight alongside paramilitaries. These programs should include, as essential elements, protection, counseling, and educational programs designed to equip them to re-enter civilian life. UNICEF is one of the organizations that should be brought in to assist with the rehabilitation of former child soldiers;
Special programs should be developed to support the return of families forcibly displaced by paramilitary violence. These programs should include, as essential elements, protection, counseling, health, education, and agricultural assistance. In some cases, the government will have to reallocate lands seized by paramilitaries and ensure that all families displaced by violence are able to support themselves;
The Uribe administration plans to recruit peasant soldiers to deploy in rural areas. Recruits must also be carefully screened and supervised, to ensure that individuals against whom there is credible evidence of human rights abuses are not absorbed into state forces;
The Colombian government must ensure security and accountability in areas formerly under paramilitary control, to prevent other illegal forces from simply taking their place. This means that these areas must receive priority assignments of permanent units of the security forces along with the effective provision of civilian resources through the Health, Education, Transportation, Commerce and Interior Ministries along with representatives of social service and humanitarian aid organizations able to begin programs aimed at reasserting state control and development;

3. The United States

The United States must aggressively apply the human rights conditions attached to military aid to Colombia, to ensure that links between the security forces and paramilitaries are broken as a condition of continuing to receive military assistance;
The United States must press Colombia and its military to pursue the paramilitaries who are not part of the negotiation, to demonstrate that demobilization, not continued fighting, is their best hope;
Even as negotiations take place, the United States must continue to collect intelligence on paramilitary leaders and field commanders, so that if these individuals fail to surrender at the appropriate time, they can be pursued, captured, and brought to justice;
U.S. extradition requests for paramilitary leaders linked to drug trafficking have played an important role in forcing these individuals to the negotiation table. These requests should not be withdrawn;
The United States should financially support efforts of Colombia's Attorney General's office to investigate and prosecute individuals accused of serious human rights crimes;
The United States should financially support demobilization efforts, particularly with programs aimed at ensuring the rule of law in regions formerly under paramilitary control, rehabilitating child soldiers, and resettling families forcibly displaced by the conflict.

4. International Community

The international community should make it clear that it opposes impunity for crimes against humanity, war crimes, and gross violations of human rights;
Irrespective of decisions made by the Colombian government, the international community should ensure that the perpetrators of crimes against humanity do not escape prosecution. An ICC investigation may be appropriate for crimes committed after November 1, 2002; other states should consider whether their court can prosecute crimes committed prior to that date;
The international community should financially support some of the cost of the negotiation, prosecutions, and demobilization. This would include the cost of prosecuting human rights abusers, reintegrating former paramilitaries and their families and supporters into society, returning forcibly displaced families to their homes, rehabilitating former child soldiers, and providing for the return of effective government authority to areas formerly under paramilitary control. These are likely to be costly, long-term commitments; however, the risks of failing to fully fund them are many more years of a sharply worsening conflict.