Human Rights Watch Testimony before the Peace Commission of the Colombian Senate

In my opinion, the most serious failing of this bill is that under the guise of proposing alternative punishment last August, the Colombian government in fact presented to this Congress a bill that would have guaranteed impunity for war crimes and crimes against humanity, among other serious crimes. These are the crimes that weigh against the majority of paramilitary commanders and leaders who seek to establish an arrangement with the current government.

Honorable senators and distinguished guests, it is my privilege to address you today on behalf of Human Rights Watch.

I would like to extend my thanks to Senator Rafael Pardo and the Peace Commission for the invitation to share our views on the critical matter of the penal alternative bill now before Colombia’s congress. With actions like these, Colombia demonstrates to its citizens and to the world the strength and value of peaceful, democratic debate.

Human Rights Watch is the largest human rights organization based in the United States. Our staff conduct fact-finding investigations into human rights and international humanitarian law abuses in over seventy countries world-wide. Human Rights Watch is a private organization independent of any government or political party. Our purpose is to report on and work to end abuses no matter who the perpetrator is or the identity of the victim.

Our work has allowed us to report not only on human rights and international law abuses, but also on peace processes in countries like Angola, Northern Ireland, South Africa, Nicaragua, Bosnia, Sri Lanka, Rwanda, Peru, El Salvador, Israel and the Occupied Territories, Guatemala, and Sierra Leone.¹ No one pretends that issues of justice and peace are easy to resolve. These are difficult, complex matters. Every country trying to achieve peace and guarantee justice does so in a new way, responding to a unique mixture of history, society, and the political context.

Yet we can draw useful lessons from the experiences of other nations. Like Colombia, other nations have experienced terrible violence. Like Colombia, other nations have paid a high price in human life. Like Colombia, other nations have had to weigh the demands of victims and the law against the very real political challenges of building a sustainable future. Like Colombia, other nations have struggled to preserve their institutions against the threat posed by international crime, whether it involves drugs, guns, diamonds, or human beings.

Let me state clearly that Human Rights Watch fully supports efforts aimed at ending political violence in Colombia. Under the right terms, peace would have an immediate and positive effect on human rights.

Nevertheless, the challenge is to make sure that any peace agreement is based on justice and not on impunity, especially when we are speaking about individuals who have ordered, planned, and, in some cases, taken direct part in some of the worst atrocities our hemisphere has known. Justice and the rule of law are the keystone of any peace agreement that lasts. Without justice, peace is fragile, fleeing, and constrained.

In my opinion, the most serious failing of this bill is that under the guise of proposing alternative punishment last August, the Colombian government in fact presented to this Congress a bill that would have guaranteed impunity for war crimes and crimes against humanity, among other serious crimes. These are the crimes that weigh against the majority of paramilitary commanders and leaders who seek to establish an arrangement with the current government.

The explicit guarantee of impunity is the only justification for this bill, since the government already has the tools it needs to negotiate with illegal armed groups. Specifically, Law 782 established precise mechanisms to govern the reinsertion of members of illegal armed groups. This legislation that has permitted not only this government, but also past governments to extend terms to individual members of armed groups who abandon the ranks. However, this legislation explicitly excludes impunity for individuals who have committed human rights violations and war crimes.

Human Rights Watch is not alone in criticizing this bill. High-level Colombian officials have also questioned its scope. I will cite only one, Dr. Edgardo Maya, the Internal Affairs chief. Dr. Maya has firmly opposed the bill before you because it would grant defacto impunity for serious crimes. He has said that “forgiveness and forgetting” is not “a mechanism that would lead to peace but rather would increase violence. This is clear from every peace process in the world … There must be a collective acknowledgement of what has happened in our history, including the atrocities. What our society needs is justice.”²

Dr. Maya is not suggesting that Colombia simply throw thousands of people in jail and throw away the key. No. As he himself puts it so eloquently, “I do not believe that we should seek to put people in jail to rot, but that we demand some recognition that damage has been caused. That it is punished and justice is done.”³

As I do not need to remind you, Dr. Maya speaks not only as a prestigious jurist, but also as a Colombian who, like so many of you, has suffered in his own family the loss of a loved one. I firmly believe that the criminals responsible for the murder of Consuelo Araújo Noguera should be punished. The murderer of Jaime Garzón should be punished. The individuals who killed 119 people in Bojayá should be punished. The people who planned and paid for the Chengue, El Salado, and Segovia massacres and so many others should be punished.

As the office of the High Commissioner for Human Rights here in Bogotá has noted, the Colombian government is right to search for creative solutions to political violence, including penalties alternative to the ones already contained in Colombian law. However, as the office recently stated, “This system must be designed and implemented without forgetting about or diminishing the fundamental judicial rights of those who, either in or outside the context of armed conflict, have been victimized by the violent actions of [illegal armed groups].”⁴

Colombia has a debt to the victims, the survivors, and the world to insure that these crimes are not swept away in the mistaken assumption that doing so will bring peace.

The international response to impunity

I would like to turn first to Colombia’s international responsibilities on this issue, since there have been recent and powerful developments in this area. Without any doubt, there is a growing international consensus that impunity -- whether via amnesties, pardons, or the imposition of very light or merely symbolic punishment -- must never be granted for crimes against humanity.

I believe that if passed without major revision, the bill before this house would grant impunity and is therefore seriously out of step with what is happening elsewhere in the world. I use the word “impunity” since, as written, this bill would establish a punishment that is virtually meaningless or entirely out of proportion with what is required to punish crimes against humanity.

The international consensus on this matter is not simply a matter of good intentions, to be forgotten once a real situation arises. Countries are using international conventions and other legal instruments to eliminate or roll back amnesties or other judicial measures that grant actual or effective impunity.

My full statement contains an extended appendix that lists these documents. Here, I would like to focus on one of those agreements, one of the most important ones: the American Convention on Human Rights.⁵

As you know, the Convention was created to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of people. It also created two linked and important institutions -- the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights -- and charged them with ensuring that States “[fulfill] the commitments made by the States Parties to [the] Convention.”

Since that time, the Inter-American Court of Human Rights has established an impressive body of case rulings that require member states to prevent human rights violations. But there is more. The Convention also obligates states, among them Colombia, “to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.”⁶

The decisions of the Inter-American Court are not mere suggestions or opinions, but are binding and obligatory, given that the Colombian state long ago ratified the Convention and is bound by other instruments that are now part of international law.

Here, I would like to refer to one of the most important recent cases that has had international impact. In this example, a ruling by the Interamerican system set up to protect human rights not only prevented impunity for a series of atrocities committed by a Latin state, but also directly addressed internal legislation designed to uphold impunity for serious human rights violations. In 1991, gunmen in Peru massacred fifteen people, including a child, at a fund-raising party in a poor tenement in Lima’s Barrios Altos district. A government investigation revealed that members of the Colina Group, a paramilitary death squad, were directly responsible. The Colina Group answered to Vladimiro Montesinos, presidential advisor and de facto head of the National Intelligence Service.⁷

However, Peru’s courts determined that the men accused of the crime – and even those whose identities might not be known – were entitled to the blanket amnesty issued by President Alberto Fujimori on June 14, 1995. This law exonerated from all criminal liability members of the security forces and civilians who had been accused, investigated, or found guilty of human rights abuses, including those already serving jail sentences. The law required that these investigations be shelved and the perpetrators released. ⁸

But the survivors presented their case to the Inter-American Court. In 2001, the Court found Peru liable for the massacre. But its ruling went further. The Court firmly rejected as illegal Peru’s amnesty laws. Let me read you the relevant part of the decision. The Court found that “all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.”⁹

The Court continues. “Self-amnesty laws lead to the defenselessness of victims and perpetuate impunity; therefore, they are manifestly incompatible with the aims and spirit of the Convention. This type of law precludes the identification of the individuals who are responsible for human rights violations, because it obstructs the investigation and access to justice and prevents the victims and their next of kin from knowing the truth and receiving the corresponding reparation… Owing to the manifest incompatibility of self-amnesty laws and the American Convention on Human Rights, the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible, nor can they have the same or a similar impact with regard to other cases that have occurred in Peru, where the rights established in the American Convention have been violated.¹⁰

Significantly, Peru accepted this ruling not only in the Barrios Altos case, but for all cases shelved because of the amnesty decrees. The Inter-American Court made it clear that this decision was generally applicable to other cases; judicial authorities have already responded by reopening cases, among them an indictment against former President Fujimori for his role in the Barrios Altos massacre.¹¹

This example demonstrates that if Colombia implements a law guaranteeing impunity for individuals responsible for serious human rights violations – for example, for the individuals who planned and carried out the 1997 Mapiripán massacre – the Inter-American Court will have to, to remain consistent with its previous rulings, declare this a violation of Colombia’s obligations under the American Convention. Therefore, the Court will require Colombia to punish those responsible for this atrocity. And as this country’s own Constitutional Court has ruled, these international decisions are of mandatory compliance.

The Argentine Case

There are equally powerful examples of how Latin American courts have acted to block impunity. In Argentina, for example, legislators and the courts used the Convention to roll back or curtail laws that granted impunity to the generals and soldiers who carried out notorious human rights abuses in the 1970s and 1980s.

In 2001, Federal Judge Gabriel Cavallo cited the Convention in declaring unconstitutional the “Full Stop” and “Due Obedience” laws, introduced in 1986 and 1987 to quell a military revolt against prosecutions for human rights crimes committed during the “dirty war.” The Argentina truth commission estimates that the military government, in power from 1976 to 1983, systematically tortured, murdered, and disappeared almost 9,000 Argentine citizens.¹²

The “Full Stop” Law prevented the consideration of cases filed with the courts after a deadline of sixty days.¹³ The “Due Obedience Law” granted automatic immunity to all members of the military except those in positions of command.¹⁴

Judge Cavallo’s ruling is worth examining.¹⁵ The judge based it on Article 118 of Argentina’s Constitution, which regulates how the country’s courts adjudicate crimes against humanity. Cavallo argued that the prosecutions of such crimes cannot be left to the discretion of individual governments. They transcend national jurisdictions. Judge Cavallo held that crimes against humanity can neither be amnestied nor made legal, and are not excused simply because they were committed as a result of orders from a superior.¹⁶

In his conclusion, Judge Cavallo ruled that the amnesty laws violated Argentina’s obligations under the American Convention as well as the American Declaration on the Rights and Duties of Man and the International Covenant on Civil and Political Rights.

On appeal, the ruling was upheld.¹⁷ Judge Cavallo’s decision was supported by many of the country’s leading jurists, among them Nicolás Becerra, the Internal Affairs chief.¹⁸ Two years later, Argentina’s Congress voted by a large majority to annul the “Due Obedience” and “Full Stop” laws.¹⁹

Judge Cavallo's ruling is now awaiting the final decision of Argentina’s Supreme Court.

But Argentina has gone further. On March 19, 2004, another federal judge overturned two of the seven pardons issued by former President Carlos Menem between 1989 and 1990.²⁰ One of the pardons shielded from prosecution six members of Argentina’s infamous First Army Corps, among them its former commander, General Carlos Suárez Mason.²¹ Immediately, authorities detained Jorge Olivera Rovere, the one living officer who was not already in custody.²²

Although the decision to overturn these pardons pertained only to the case involving crimes committed by the First Army Corps, Argentine prosecutors say that they will be using it to invalidate other pardons.²³

What is happening in Argentina and Peru should not be viewed here in Colombia as a possible, though unlikely future. It is the certain future if a law granting impunity or defacto impunity for crimes against humanity is passed and implemented.

As you are well aware, your own Constitutional Court ruled last year that decisions by the Inter-American Commission, the Inter-American Court, and the U.N. Human Rights Committee that reveal a “glaring failure on the part of the Colombian State to fulfill its obligations to investigate in a serious and impartial way human rights and international humanitarian law violations” can be used to mount legal appeals within Colombia. This is possible even when a case has resulted in an acquittal.

In other words, the principle of double jeopardy can no longer be used to shield decisions that, in the Court’s own words, reveal that the “investigative process was not carried out with the sufficient seriousness required by the Constitution and human rights treaties.”²⁴

This decision is worth quoting at length. The reason, the Court argued, is that “the search for a just system and for the rights of victims supercedes the legal protections and the principle of non bis in ídem. Because of that, the mere existence of an acquittal and the principle of double jeopardy should not block the reopening of an investigation into [human rights and international humanitarian law violations], if developments and new evidence appears that was not known at the time of investigation and trial. The legal system in a democratic society, rooted in the principle of human dignity, cannot be constructed on a platform that silences pain and the demands for justice made by victims of the most atrocious behaviors, among them human rights and international humanitarian law violations.”²⁵

The Court also held: “to incorporate the body of human rights and international humanitarian law treaties (CP arts 93 y 214), the Court finds that the decisions made by these international institutions, accepted formally by our country, that find that the Colombian State has not complied with its obligation to investigate in a serious and impartial manner human rights and serious laws of war violations can be used to appeal acquittals that have already been made.”²⁶

This decision is in accordance with the precedents established by the international tribunals created to address serious human rights situations in places like Sierra Leone, Rwanda, and Uganda. Certainly, this is one of the strongest messages sent by the trial of former Yugoslavian president Slobodan Milosevic, now being prosecuted by the International Criminal Tribunal for the former Yugoslavia. That court is expressly authorized to “take over national investigations and proceedings at any stage if this proves to be in the interest of international justice.”²⁷

As the examples of Peru and Argentina also demonstrate, it is no longer possible for any country to simply ignore the clamor for justice or its international commitments.

I would like to also emphasize the fact that Colombian law also prevents the granting of light or merely symbolic punishment to individuals who have committed gross violations of human rights. Among them, Law 782, which in 2002 renewed Law 418 of 1997, establishes terms to assist negotiations with illegal armed groups, in the interest of achieving their demobilization. However, article 19 explicitly prohibits individuals who have committed serious crimes – atrocities, terrorism, kidnapping, genocide, killings outside of combat or when a victim is defenseless – from benefiting from any pardon.²⁸

The International Criminal Court

To conclude on this crucial point, I would like to remind you that Colombia is also a party to the Rome Statute of the International Criminal Court and for that reason its nationals are potentially subject to its jurisdiction. An effort to circumvent justice and grant the equivalent of impunity to infamous human rights abusers will risk having that court take up Colombian cases if they fall within the Court’s jurisdiction.²⁹

What does that mean in practice? Even if Carlos Castaño or Manuel Marulanda avoid punishment in Colombia, they may face prosecution before the international court. Even if this Congress passes a law that guarantees impunity for serious human rights and international law crimes, it will not shield these individuals from prosecution by this court. At a moment of its choosing, the International Criminal Court would, according to its rules, be able and authorized to open investigations and potentially impose severe punishment on individuals who commit crimes against humanity. The Colombian state would be obligated to cooperate. The Court gained jurisdiction over Colombia on November 1, 2002.³⁰

Allow me to read to you from the Rome Treaty itself, specifically Article 17, which addresses the question of admissibility. The Court considers that cases may be admissible when a state is either “unwilling or unable genuinely to carry out the investigation or prosecution.” Let me stress again -- “unwilling or unable.”

How does the court define “unwilling”? The Court determines whether one or more of the following conditions exist: any proceedings have been undertaken or laws have been passed that shield individuals from criminal responsibility for crimes against humanity; there has been an unjustified delay in the proceedings; or the proceedings have not been conducted independently or impartially or have been conducted in a manner inconsistent with an intent to bring the person concerned to justice.

It is clear to me that the paramilitaries are aware of the threat of prosecution by the ICC. In a March communiqué, Castaño and Salvatore Mancuso explicitly call on the Colombian government to violate its commitment to the statute and shield them from its jurisdiction.³¹

Although this bill does not explicitly offer amnesties or pardons to individuals who have committed crimes against humanity, war crimes or genocide, we believe that this bill fails to establish even a minimum requirement of justice for those responsible for those crimes. The punishments contemplated in this bill are in stark disagreement with the minimum international standards – and the minimum national standards – that govern the principle of proportionality.

Contrary to what might have been expected, revisions to this bill that were submitted after the original text was sharply criticized introduced sanctions that were even more benevolent on crimes that included crimes against humanity. The new sanctions proposed offered only a temporary restriction on an individual’s ability to travel within the country. Such a sanction imposed on a well-known paramilitary chieftain, responsible for crimes against humanity and human rights crimes, could never be considered proportional to the gravity of the crime. Indeed, such a light punishment could easily be interpreted by the International Criminal Court as an effort to “shield[ing] the person concerned from criminal responsibility for crimes within the jurisdiction of the Court” or “inconsistent with an intent to bring the person concerned to justice.”

I would be remiss if I failed to mention the other international aspect of this issue and the response of the paramilitaries: the extradition requests issued by the United States. This has been the matter of intense debate recently. Currently, three paramilitary leaders are the subject of U.S. extradition requests. Fifteen others appear on a U.S. Department of Treasury list of Foreign Narcotics Kingpins, meaning that U.S. individuals and companies are prohibited from doing business with them and that any assets that they might have in the United States are blocked.³²

And as you know, in 2001, the U.S. State Department put Colombia’s paramilitaries on its official list of Foreign Terrorist Organizations, where they remain as of this writing.³³ President Uribe and his government have repeatedly expressed a commitment to honoring these requests.³⁴

The penal alternative bill

Let me move to the specifics of this bill. As is well known, Human Rights Watch strongly objected to this bill when it was presented to this Congress last year. We were opposed to a bill that was built upon a foundation of pardon, forgetting, and impunity that favored those responsible for war crimes, crimes against humanity, and other serious human rights crimes.

Let me emphasize that Human Rights Watch would have objected, on the same terms and using the same language, if such an offer had been made to members of the Revolutionary Armed Forces of Colombia (FARC) or to the Army of National Liberation (ELN). This is not about ideology; it is about justice.

As written, the bill also lacked many other necessary elements, among them language that would have guaranteed impartial and complete investigations of abuses, or any incentives that would invite or impel individuals to confess their crimes and help clarify what happened. This is particularly serious in cases that involve allegations of government involvement in serious crimes.³⁵

I understand that the bill has undergone some modification.³⁶ Yet much needs to be done to make this bill an effective law to guarantee peace and national reconciliation given that, as I have said, it is a bill that would deliver only forgetting and impunity.

Senator Rafael Pardo Rueda himself has eloquently expressed a firm and detailed critique of the original bill, focusing on its failure to establish real measures that would build peace, among other things, because it failed to distinguish levels of accountability within armed groups; fomented the “recycling” of armed groups in new guises; and allowed for a total pardon for their horrific crimes, without including firm requirements for reparation for the victims, even on a symbolic level.

I would like to underscore my point by making some constructive suggestions to demonstrate that it is, indeed, possible to fashion a law that reflects Colombia’s human rights obligations and contributes to peace. It will not be easy. No country has found a smooth and trouble-free path to justice and an end to conflict.

However, other countries have faced issues similar to the ones you face, and have adopted measures that have proved both productive and in accordance with human rights norms.

The example of Northern Ireland

Let me turn to the example of Northern Ireland since its accelerated release program, adopted as part of the 1998 Good Friday Agreement, was part of the inspiration for the bill before the Congress.³⁷

First, a couple of words about the violence there. Between 1969 and 1998, over 3,600 people were killed in Northern Ireland, more than half civilians. As in Colombia, they were subjected to horrific acts of terror, including the use of gas cylinder bombs, a tactic now commonly employed by the FARC.³⁸ Groups monitoring violence attributed most killings to groups allied with the Republican cause, in particular the Irish Republican Army (IRA). For their part, Loyalist groups killed Catholics, suspected IRA supporters, and human rights defenders, at times in collusion with the authorities.³⁹

In the decades prior to the Good Friday Agreement, those imprisoned for politically-motivated crimes could benefit from a variety of early release or amnesty programs, making Northern Ireland easily Colombia’s equal in experience with these efforts.⁴⁰ However, the 1998 program is dramatically different from the one under consideration now in Colombia.⁴¹

Let’s begin with individuals who benefited from early release in Northern Ireland. Only prisoners already convicted and serving time in prison could apply for early release. But there is more. No prisoner could qualify for early release before completing a minimum of two years in prison. Let me repeat this: not a single person was allowed to avoid prison time entirely.⁴²

In contrast, the Colombian bill defines those individuals qualifying for no prison time as anyone who belonged to an illegal armed group that had declared a cease fire; either the individual or the group had to be taking an active part in a peace process. What kind of illegal armed group? It is not clear. Some have argued that this language could benefit any organized group that wants to apply, including drug traffickers or car thieves.

Then there is the question of a cease-fire. In the Colombian bill, a group that intended to benefit from the law needs only “declare” a cease-fire; it does not need to honor one. Let me repeat: the language in the bill says an “illegal organized armed group that has declared a ceasefire.”

As this Congress heard recently, the current cease-fire in Colombia is a fiction.⁴³ Even Castaño has acknowledged this.⁴⁴ Between December 2002 and December 2003, the office of the High Commissioner for Peace registered 362 murders and sixteen separate massacres attributable to paramilitaries. In the same time period, paramilitaries carried out 180 kidnappings.⁴⁵

The process was quite different in Northern Ireland. In August 1998, less than a month after the IRA declared its ceasefire, Britain’s Secretary of State for Northern Ireland, Mo Mowlam, explicitly linked the proposed prisoner release program to its permanence.⁴⁶

In other words, the release was not immediate; it was conditioned on the honoring of the cease-fire. Four paramilitary groups – two Republican (the Continuity IRA and the Real IRA) and two Loyalist (the Red Hand Defenders and the Orange Volunteers) – have not qualified their supporters for early release since they have not honored the ceasefire.⁴⁷

Moreover, the eligibility of prisoners could be revoked if it was determined that their leadership had violated the cease fire. For example, on October 12, 2001, the secretary of state for Northern Ireland declared the ceasefires of two Loyalist paramilitary groups to be at an end, shortly after the murder of journalist Martin O’ Hagan. This means that members of those organizations convicted of crimes committed before the ceasefires could no longer benefit from early release.⁴⁸

Although the Real IRA claimed to have “suspended operations” after it carried out the horrific Omagh bombing of August 1998, which killed twenty-nine civilians, their continued attacks have prevented their members in jail from benefiting from any early release.⁴⁹

Unlike the Colombian bill, which could allow individuals who had taken part in non-political crimes, like drug trafficking, to qualify for early release, in Northern Ireland, only individuals convicted of so-called “scheduled offenses,” or terrorism-related crimes, could qualify. Crimes like drug trafficking are not “scheduled offenses.”⁵⁰

Finally, even prisoners who satisfied all of the requirements laid down in the Good Friday agreement did not qualify automatically or immediately for release. Prisoners had to petition for release. A three-member commission reviewed each claim. Among the factors commissioners weighed were “the seriousness of the offences for which the person was convicted and the need to protect the community.” The prisoner had to demonstrate that they no longer supported a terrorist organization and would no longer take part in the commission, preparation, or instigation of acts of terrorism.⁵¹

Release dates were calculated on the basis of the seriousness of the crime that had led the individual to prison. Prisoners serving a fixed term were eligible for a sentence reduction of two-thirds. Prisoners sentenced to life were entitled to less of a reduction. The commission reviewing the case would calculate how long they would have normally served, and reduced it by one-third.⁵²

Between September 1998 and July 2000, the early release program in Northern Ireland freed 447 prisoners: 241 Republicans, 194 Loyalists, and twelve non-aligned prisoners.⁵³ Overall, only three individuals were released after serving the minimum of two years in prison, according to official statistics. Almost all served significantly more time in jail.⁵⁴

If an individual violated the terms of the release, the commission could revoke their license and the individual would be returned to prison. Of those released, thirty-six were later charged with further offences. In nine of those cases, individuals were considered to have breached the terms and had their licenses suspended.⁵⁵

One of the most notorious cases involved Loyalist Johnny Adair, the leader of the Ulster Freedom Fighters during some of the most violent years of its activity.⁵⁶ On January 10, 2003, authorities revoked Adair’s license for the second time; he was returned to prison, where he remains today.⁵⁷

The Republic of Ireland also carried out a parallel prisoner release. Between 1994, with the beginning of the IRA ceasefire, and 2002, the Irish Republic had released 121 prisoners, fifty-seven as a result of the Good Friday Agreement.⁵⁸ The releases were followed up by a broad range of rehabilitation and reintegration programs that, while still inadequate, have helped to diminish violence.

The Northern Ireland arrangement was not perfect. The first releases caused a firestorm of criticism, as victims of violent attacks saw some of the most notorious gunmen on both sides of the sectarian divide leave prison grounds to often tumultuous welcomes by their supporters.⁵⁹ While some victims support the process as the only path to peace, others have filed legal challenges to the releases and have carried out high-profile public acts of protest, including by handcuffing themselves to prison gates.⁶⁰

As yet, no Truth Commission has established a collective accounting for what happened during what the Irish refer to as “The Troubles.” There have been judicial inquiries into specific atrocities, among them “Bloody Sunday,” when the security forces killed thirteen people at a civil rights demonstration in Derry on January 30, 1972 (a fourteenth died later). It was chosen because it was the largest single instance of killing of civilians by the security forces and was seen by many, particularly within the Nationalist community, as showing government complicity in the escalation of the conflict. The inquiry is not expected to conclude before 2005.⁶¹

Some Republican prisoners were released despite the fact that the IRA has so far failed to completely disarm and continues to carry out the maimings known as “punishment beatings,” a tactic used to intimidate and control people in Republican and Nationalist neighborhoods. According to police, the IRA shot or bludgeoned more than fifty people in 2003.⁶² Continuing IRA activities -- including racketeering and arms smuggling -- have also undermined public support for the Good Friday agreement.⁶³

For their part, Loyalists are involved in the most serious, current violence and are believed to have killed seven people in 2003. In addition, they were linked to 135 shootings, forty-one bombing devices, 107 shooting casualties, and 110 punishment beatings.⁶⁴

Indeed, only a portion of the killings that took place in Northern Ireland during the Troubles have resulted in prosecutions. According to the Police Service of Northern Ireland, more than 1,800 killings related to the Troubles remain unresolved.⁶⁵ One of the most well-known involves the 1989 murder of Patrick Finucane, a prominent defense lawyer. In 2003, the person suspected of involvement in the murder was arrested and is awaiting trial in a Belfast court. However, his alleged ties to a British military intelligence unit and a shadowy network of informants under the Royal Ulster Constabulary remains unclear.⁶⁶

The example of South Africa

Let me move to a very different example. South Africa created its Truth and Reconciliation Commission (TRC) in 1994. This was a unique institution charged with establishing a record of human rights violations during the apartheid era, making recommendations for reparations, and granting amnesty on the basis of individual applications in limited circumstances. The commission wanted the truth of what had happened, but was also committed to creating a viable, new South Africa.⁶⁷

In contrast to Northern Ireland, individuals who had committed crimes but had not been prosecuted or convicted could request amnesty in exchange for making a “full disclosure of all the relevant facts” relating to crimes that took place between 1960 and 1994. But again, there were critical differences between this procedure and the one under discussion in Colombia.

South Africa’s process has been far from a blanket amnesty. Several thousand individuals now face prosecution after their requests for amnesty were denied.

In South Africa, crimes had to be political in nature to qualify for consideration by the TRC. In this way, the South Africans excluded ordinary crimes, including drug trafficking. The crimes that the TRC could consider were defined as acts “executed on the order of, or on behalf of, the state or an established political organization.”⁶⁸

These acts could also be termed gross violations of human rights, among them “the killing, abduction, torture or severe ill-treatment of any person or any attempt, conspiracy, incitement, instigation, command or procurement to commit such a violation.”⁶⁹

Perpetrators who asked to testify before the TRC did so in sessions not unlike regular court proceedings, with lawyers representing the victims. These lawyers could cross examine and introduce evidence gathered through a variety of sources, including the public hearings held with victims that began the commission’s work.

Based on perpetrator testimony, some of the missing were located, exhumed, and respectfully buried. For others, the confessions of perpetrators brought answers to previously unsolved political crimes that would otherwise have remained in shadow. Critically, the chain of command, especially in terms of the apartheid system’s use of terror, was bared. In many, though not all cases, the testimony left no doubt about who held ultimate responsibility.⁷⁰

As in Northern Ireland, South Africa’s amnesty sub-commission did not automatically grant amnesty. Out of the 7,112 individuals who applied, only about 1,200, or 17 percent, were successful.⁷¹

The option of future criminal proceedings remained possible where suspected perpetrators had failed to cooperate with the commission or had been denied amnesty. Among those denied amnesty was Gideon Nieuwoudt, a former police colonel infamous for his brutality as a police commander in the city of Port Elizabeth. In February 2004, Nieuwoudt was arrested and charged with the 1985 deaths of the anti-apartheid activists known as the Pebco Three, a crime he had been refused amnesty for by the commission.⁷²

So far, Nieuwoudt is the only individual who applied for amnesty to be denied and then prosecuted.⁷³ Also, the African National Congress, which carried out a bombing and selective assassination campaign, applied to the commission for a blanket amnesty and was denied.⁷⁴

Certainly, the amnesty provisions were and continue to be controversial. Former South African President F.W. de Klerk won a court action forcing the commission to delete findings about his complicity in murders and “disappearances.” Some critics charged that abuses committed by the African National Congress were not dealt with as severely as abuses by the country’s white leaders.⁷⁵

Human Rights Watch has called on the South African government to follow through on its promise to grant reparations to the victims of abuses. Reparations form an important acknowledgement to victims of what happened -- especially since so many who committed abuses were been granted immunity from prosecution.⁷⁶ For former commission chairman Bishop Desmond Tutu, the failure to adequately compensate the over 22,000 recognized victims was a particular disappointment. In 2003, the government agreed to give each victim the equivalent of $4,500, a fifth of the sum recommended by the commission.⁷⁷

Conclusion

I have not discussed here all of the peace agreements that have taken place in the world in the past decades. Certainly, there are some that have resulted in impunity. A U.N. sponsored truth commission in Guatemala estimated that as many as 200,000 people were killed during the thirty-six-year war that ended in 1996. Government forces were responsible for the vast majority of the killings, and their victims were mostly unarmed civilians. Yet only a handful of these cases have been addressed by the Guatemalan justice system and with very mixed results.⁷⁸

In Mexico, efforts to account for crimes of the past are still incipient and fragile.⁷⁹ Yet Mexico is actively seeking to rectify damage done in the past and help ensure that in the region, the dark days of massacre, murder, and torture are never repeated.

The matter before you is of the utmost importance and urgency. I urge you not to allow the approach used last November in Medellín to become your model. I said it in November and I will repeat it now: that event was a shame and a travesty.

There, 871 individuals presented themselves for demobilization, but without any accounting for who they were, what they might have done, and what, if anything, the government was doing to ensure justice for the Colombians who had suffered their attacks. No one reviewed their records and evaluated their crimes, as was done in Northern Ireland. No one reviewed their records and evaluated their crimes, as is normally done here in Colombia, particularly in the programs that has reinserted over 5,000 former combatants this year. No victim was allowed to confront them with a crime and see them cross-examined, as happened in South Africa. No one held them to their commitment to a cease-fire. No one demanded from them a single sign of remorse or a single, even token gesture of reparation.

Today, all are once again free; and the people who live in the neighborhoods they once terrorized must now live again within sight and sound of them and are once again prey to their acts of violence and their assumption that those acts will go unpunished.

This was something that emerged very powerfully from the just-concluded public hearings held by Peru’s Truth and Reconciliation Commission. The Commission had a very limited mandate, much more so than its inspiration in South Africa. The Commission had no power to refer cases for trial or award amnesties or other judicial benefits to perpetrators who may have confessed to its members during public hearings.

Justice is a task that still awaits that nation. Like Colombia, Peru is faced not only with understanding the past, but the equally challenging one of building a better nation.

To briefly review, this bill violates Colombia’s international human rights commitments, codified in a variety of treaties and covenants; it violates the country’s internal laws, which explicitly prevent individuals who have committed crimes against humanity or serious human rights crimes from benefiting from pardons or amnesties; it violates the rulings handed down by the Constitutional Court; it fails utterly to take into account the suffering of victims, who continue to demand justice; it does not contribute to peace, since it fails to effectively deal with individuals who have committed acts of violence, opening the possibility that they will simply be recycled and freed to continue acts of violence; it fails to met the minimum standards for the proportionality of punishments for crimes committed; and it allows others, among them the guerrillas, who continue to commit serious crimes to assume that they, too, will one day benefit from impunity.

Thank you.